There have to be various factors present to be able to bring a medical negligence claim (also known as ‘clinical negligence’), against a health care professional.
he Factors of A Medical Negligence Claim
- A Duty of Care.
Of course, any GP, or hospital, looking after you, is going to owe you a duty of care. You may be surprised to know that the duty is not actually to provide an excellent standard of care, nor even a good standard! It is only to provide a reasonable standard of care that should be expected of any responsible body of similar healthcare providers.
So, if a nurse treats you, then the standard of care will be that of a responsible body of similarly qualified nurses. If a Consultant treats you, then the duty of care will be for a higher degree of skill and knowledge than would be expected of, say, a junior doctor. This test is based on past case law and is referred to as the Bolam test.
The Bolam test is as follows and, despite being decided in 1954, it is still applicable today:
“A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by responsible body of medical men skills in that particular art… Putting it the other way round, doctors not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that takes a contrary view.”
In 1993, there was Judgement in another case, now known generally as the Bolitho test. This test modifies the 1957 Bolam test. Lord Browne-Wilkinson restricted the boundaries of Bolam, stating:
“The court should not accept a defence argument is being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis”, and
“However, where there is a body of medical opinion which represents itself as ‘reasonable’, ‘respectable’ or ‘responsible’ it will be rare for the court to be able to hold such opinion to be other than represented”.
The decision allows a court to look carefully at each side’s medical experts and to consider whether or not their written report, and oral evidence given at trial, is logical. If not considered logical, then a judge can disregard that evidence and decide for the other party to an action. This could happen, by way of a few examples, where an expert: –
- Is simply proven to be wrong in their opinion; or
- Is shown to be giving an opinion that is not representative of a “reasonable body of opinion”, but rather the expert is just speaking for himself; or
- The expert is shown not have considered all of the relevant factors in a given case
A breach of that duty of care.
There has to be something done (‘an act’), or something not done (‘an omission’) that amounts to a breach of duty of care. However, although you can complain about any such act or omission, you cannot bring a medical negligence claim for compensation unless you can also satisfy the third test below.
Harm resulting from the breach of duty of care.
At Medical Solicitors, we have often heard the complaint:
“I could have died because of that mistake!”
However, you cannot claim for medical negligence simply for knowing that injury may have come to you, or a loved one. A medical negligence claim can only be brought for harm that has actually resulted, or harm that will probably result in the future, from breaches of duty of care.
So, what injury, if any, has actually resulted from a negligent act, or omission?
Informed Consent cases
Informed consent cases are dealt with slightly differently to the Bolam test.
The 2015 case of Montgomery has strengthened medical negligence claims on issues of consent to treatment. The Judgement in Montgomery clarified that, in today’s modern society, the patient’s right to be fully informed as to risks of proposed treatment, and alternatives treatment options available, is a basic human right.
If a doctor doesn’t deal with the consenting process responsibly, and a patient can show they would have made a different choice with more information, then a claim may succeed for compensation for medical negligence. This is provided the patient can prove that their injury would probably have been avoided with different treatment.
So, for example, if a patient is injured during surgery, and proves that they would have opted for a different treatment pathway, with fuller advice before surgery, they will have a claim for their injury.
What is the ‘burden of proof’ upon a Claimant? In other words, how difficult is it to bring a claim in clinical negligence?
A claimant does not have to prove 100%. The burden of proof is on the balance of probabilities i.e. 51% or more. However, as a matter of common sense, the more serious a case is regarding the alleged breach of duty of care, the stronger the evidence should be.
About Medical Solicitors
Our friendly team of specialist lawyers at Medical Solicitors have a lot of experience in bringing successful medical negligence claims.
Compensation can be claimed where there has been delay in getting a patient to hospital, delay in diagnosis, inappropriate advice given concerning care options and risks and benefits of such options, where there have been excessive delays in providing actual treatment, or where there has been any substandard care that amounts to actual Medical Negligence.
Do contact our friendly team of specialist lawyers at Medical Solicitors. We conduct most of our Clinical and Medical Negligence claims under ‘No Win, No Fee’ agreements, also known as Conditional Fee Agreements. So, you do not have to worry about how you are going to afford to bring a medical negligence claim for compensation. You have nothing to lose in speaking to us.