Loading the player ...

What is Medical Negligence?

Medical Negligence (also known as clinical negligence) is where the standard of care provided to a patient by a medical professional under the NHS or in the private sector, falls below the standard that would be considered reasonable by a responsible body of medical opinion and where the patient has sustained an injury as a result of the negligence.

To succeed in a claim for medical/clinical negligence you must be able to establish 4 key things;

• Duty of care
• Breach of duty of care
• Causation and
• Damage or injury

Duty of care

This is the easy one. All doctors and health professionals owe a duty of care to their patients to exercise reasonable care in carrying out their professional skills.

Breach of duty of care: In other words - negligence

Did the doctor do something wrong or fail to do something that s/he should have done? Was the care you received below the required standard?

Trying to establish that there has been a breach of duty of care can be difficult. Before you allege that a doctor has been negligent it is important that your claim is thoroughly investigated. The standard by which doctors are judged is set out in a case which was decided many years ago in 1957 called Bolam -v- Friern Hospital Management Committee. The standard is as follows:

A doctor is not guilty of negligence if he acts in accordance with what a responsible body of medical opinion considers to be proper practice at the time.

A doctor must exercise the skill of a competent doctor in his field. A doctor is not negligent if there is a responsible body of medical opinion who would have acted in the same way as the doctor.

It is useful to know that a doctor is judged according to the practices of the day. This is because there are changes in accepted practice all the time. Therefore if your claim arises out of treatment that you received in 2001 and your case comes to court in 2007 the standard will be that of practices in 2001.

What is a responsible body of medical opinion?

This is a responsible group of doctors who all agree that something is done in a particular way. There may of course be more than one responsible body of medical opinion.

There is nothing to say that the group must be of any particular size. A very small group of doctors who do things one way may amount to a responsible body of medical opinion.

At trial the judge will need to decide what a responsible body of medical opinion is. He will do this by hearing evidence from both sides' medical experts. The medical expert evidence must be logical and stand up to analysis.

When we investigate your case, it may become apparent that there may be more than one way of treatment that is considered to be reasonable. It may come to light that treatment methods and standards across the country vary. This variation does not necessarily make the method used in your area negligent. For these reasons it can sometimes be difficult to establish a breach of the duty of care.

Causation - The difficult bit...

Did the negligent treatment cause or materially contribute to the injury?

If you can show that the doctor made an error and that this error was negligent, you must then prove that the negligence caused you some harm.

Proving causation can be difficult in medical negligence cases. You must remember that you went into hospital for treatment of some kind. We need to help you find out if what happened to you would have happened anyway or it happened because of the negligent treatment you received. Sometimes the injury is confused with the underlying condition for which you went into hospital in the first place.

In most cases you will need the opinion of an independent medical expert to help you prove that what happened to you would not have happened if the doctor(s) had not been negligent.

Injury

Not all errors result in an injury and not all injuries are caused by error. To succeed in a claim you must show that you have suffered an injury or some damage and that that this was as a direct result of or materially contributed to by the treatment you received.

Summary of what you have to prove

It is important to remember that just because something has gone wrong medically does not always mean that someone has been negligent and that there is a case to be answered. The success or failure of a medical negligence case will depend on the strength of your expert evidence.

You not only have to show

1. that there was a breach of duty BUT ALSO

2. that the breach of duty caused or materially contributed to you suffering damage or an adverse outcome.

In some cases there will be a breach of duty but it will have made no difference. You must therefore show both things and that the 2 things are linked.

If the expert evidence is supportive we can proceed with your case. If the expert evidence is not supportive we will usually advise against proceeding any further with the claim. Without the backing of a supportive expert it is generally very difficult to succeed with a claim for Clinical Negligence. The reason for this is that the judge will want to hear what the expert has to say. Whilst you can help the judge by giving the facts in your case, the judge will decide on whether there has been negligence or not on the basis of what the experts say.

It is also important to remember that if you go ahead with a claim you may have an expert that supports your case. Your opponent may however have an expert that does not agree with your expert. The judge will therefore have to decide which expert's evidence he or she prefers in the circumstances of the case.

To find out more about making a medical negligence claim, call Moosa-Duke Solicitors on 0800 952 0010 or 0116 2206433 or email: mduke@moosaduke.com

Or enquire on line by clicking here.

Clinical Negligence and Medical Negligence: Some Examples

If you want to know whether you have a claim - call us on 0800 952 0010 or contact us by clicking here.