Hospitals and their staff make an invaluable contribution to the well-being of UK citizens, and in the vast majority of cases, correct medical advice and treatment is given. However, on rare occasions, hospital staff fail to give patients a high enough standard of care and in such situations this lead to medical complications, physical and emotional trauma, financial loss and, in the most serious of cases, premature death. Although it may sound a bit odd but you are able to make a claim against your hospital if there is no single identifiable doctor who has performed negligently.
This was confirmed in the 1988 case of Wilsher v Essex Area Health Authority where it was held that a hospital authority had a duty to provide services of doctors of sufficient skill, and there is no reason why a health authority cannot be liable if they fail to provide them. This therefore satisfies the first of three points if you were to claim against your hospital, that of there being a duty of care. The other two being breach of duty and causation being more troublesome to pin down.
Breach of Duty
In a claim against your hospital you need to show that there was a breach of duty which led to your injury being caused. As mentioned in our professional negligence page the test for breach of duty is a modified version of the reasonable man test which in this case the claimant needs to show that the staff of the trust/hospital followed a course of action which is not supported by any reasonable body of medical opinion, this is known as the Bolam test.
If the trust can show that they acted in line with a reasonable body of opinion then it is unlikely there is a breach of duty. They also may be able to argue that if 10% of doctors or trained staff would act in the same way then they could defend against a claim for medical negligence as there probably wasn’t a breach. This is because within the medical field there can be scope for genuine differences.
The courts have also regularly reaffirmed in these cases that the evidence needs to be clear and that just because an operation goes wrong or things turn out badly does not mean that the hospital trust has been negligent and breached their duty.
Obviously if it’s not a matter of clinical judgment but rather a straight forward act of negligence then it is likely that a breach of duty will be easier to prove.
In a claim against your hospital causation can be quite a tricky thing to confirm. This is often because in a normal personal injury claim the Claimant will not be injured/ill and it is clear of the effects of the negligence, within a medical negligence claim such as this the Claimant will already be suffering from one thing or another and the cause of the claimed for injury could be down to several variables.
Normally the claimant will be arguing that they failed to recover from their condition because of the negligence of the staff or he has received new injuries because of it. When considering this the Courts need to bear in mind the level of knowledge of the medical professional at the time of the alleged negligence. To succeed in the case the Claimant also needs to show that the actions of the staff of the hospital caused the injury. If the victim would have died anyway whether they had acted or not then it is likely that they won’t be considered negligent.
The Claimant also needs to show that there was a better than 50% chance they would recover from the illness if the hospital staff had not breached their duty. If they can’t show that then it is unlikely they will be successful.
Possible reasons to claim
The reasons for hospital staff failing in their duties towards their patients are numerous:
- they may be tired or overworked;
- they may be poorly trained or inexperienced;
- there may have been a breakdown treatment systems or communication;
- or, for many reasons, they may not have taken their patient’s complaints seriously enough.
Medical negligence by hospital staff can lead to many problems :
- Illnesses caused by the prescription of unnecessary or inappropriate medicine;
- The need for surgery which may otherwise have been available has a correct diagnosis been made;
- Progression of an illness beyond the point upon which it can be operated upon following a failure of diagnosis or a misdiagnosis;
- Permanent disability or prolonged recovery periods;
- Excessive scarring;
- The suffering of symptoms, infection or pain which would otherwise have been avoidable;
- Loss of earnings or capacity to work.
It is clear that a medical negligence claim against your hospital could be very tricky. This is why proper advice is required. If you have suffered due to the negligence of your hospital please do not hesitate to contact us on 0800 014 8727 or 020 3923 0888 where one of our team will be able to discuss the situation with you. We will be able to advise you on whether we feel this is a case we could take forward on a potential no win no fee basis.