How to prove a claim for medical negligence

How to prove a claim for medical negligence: Part 1

A common misconception amongst the majority of my new medical negligence clients is that because they have suffered an adverse outcome from treatment that they have received, it must be due to the fault of those healthcare professionals treating them and thus, their claim will succeed. Unfortunately, it is rarely that straightforward.

There are several key components to establishing a claim for medical or clinical negligence. These are set out as follows:

1. Establishing that a duty of care was owed to the patient by their treating healthcare professional;
2. That there was a breach of that duty of care;
3. The breach of duty of care caused some damage (causation).
4. That the damage was the sort that would be reasonably foreseeable to the Defendant (not too remote).

This article focuses on the duty of care and what tests have to be overcome to prove that there has been a breach of the duty of care.

Duty of care

Establishing that a duty of care was owed to a patient is a relatively straightforward process in most medical negligence claims. In a legal sense, there is an assumption of responsibility by the doctor for his or her patient. Implicit in this relationship is that a lack of care by the doctor may give rise to harm by the patient. This extends to either a lack of care by taking some action or, a lack of care by failing to take some action.

In a very broad sense, the actions of a healthcare professional (doctor, nurse, surgeon etc) should be judged by the standard of the ‘reasonably competent’ practitioner. Substandard management is therefore management which falls below that to be expected from the ‘reasonably’ competent practitioner; alternatively, it is management which would not be adopted or condoned by a ‘responsible body of professional opinion’ in the particular field.

Proving a that there was a breach of duty of care

Bolam v Friern Hospital Management Committee (1957)

In this case, McNair J stated that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view.’

The case of Bolitho v City and Hackney Health Authority (1997) also examined the standard referred to in Bolam and added that ‘… the Court has to be satisfied that… the body of opinion relied upon can demonstrate that such opinion has a logical basis.’

In most cases, a Court is likely to conclude that treatment was provided reasonable if there are experts in the field that agree with the actions taken. However, as per Bolitho, those experts will need to explain the logical rationale for their approach.

Other noteworthy aspects of proving that there was a breach of duty of care are:

• Reasonable skill and care does not amount to best practice – the applicable standard to this test is that of an ordinary competent doctor exercising that particular skill (not the best doctor);
• Regard should be had to the standard applicable at the relevant time of the negligence and not (if different) to the standards of the present day. Advances in medicine are very common and therefore it is important that the standard is not viewed with the benefit of hindsight or against new and/or improved practices introduced at a later date. For example, treatment recommended by a doctor 10 years ago may not be recommended by a doctor today.

How to prove a claim for medical negligence: Part 2 will be released in due course.

Johnathan Steventon-Kiy, specialist medical negligence lawyer, says:

“Proving that a breach of duty of care took place can be an extremely difficult. It is vitally important that clients, who are considering making a claim for compensation arising from clinical negligence, speak to a specialist lawyer as soon as possible. At Biscoes Solicitors we have many years’ experience in successfully pursuing all types of claims arising from clinical negligence.”

Contact our specialist medical negligence solicitors on 02392 660 261 or visit www.biscoes-law.co.uk for more information. You can also follow us on twitter using the handle @biscoesmedneg