What needs to be proved for a successful medical negligence claim?
Pursuing a claim for medical negligence is often a long and complex process. When considering whether to pursue a claim for compensation, it is important to remember that negligence at law is not the same thing as negligence in everyday language. In everyday language, the word negligence is often used to explain acts of extreme carelessness. However, not every mistake or careless act by a healthcare professional can be considered negligent at law.
In order to prove negligence at law three elements are needed:
1) Injury
2) Breach of Duty
3) Causation
All three of these elements must be present for a claim for medical negligence to be successful. When you claim you have been affected by medical negligence, you are responsible for proving these three elements on a balance of probabilities (more likely than not) basis.
Injury
The first thing that must be proven is that the individual making the claim has suffered an ‘injury’.
If we take the example of a missed fracture on an x-ray, the injury in these circumstances would not be the fracture itself but would be the extra treatment required as well as the additional pain and suffering experienced if the fracture had taken longer to heal than it would have done had the fracture had been correctly identified.
It’s important to distinguish between the original reason for seeking medical advice and the normal, non-negligent course of treatment, and to separate that from how the negligent care impacted recovery and any longer-term prognosis.
Breach of Duty
Once the injury has been established, it is necessary to consider whether the doctor or other healthcare professional breached their duty of care.
In simple terms, a breach of duty happens when a healthcare professional provides care that falls below the standard expected of a reasonably competent practitioner in their field.
It’s not enough that something went wrong or that the outcome was poor — medicine isn’t risk-free. What matters is whether the care given was substandard when compared to what other responsible professionals would have done in the same situation.
In practice, this means looking at questions like:
- Were the correct tests or investigations carried out?
- Were symptoms recognised and acted on appropriately?
- Was the patient warned of known risks?
- Was there a delay in diagnosis or treatment that could have been avoided?
If the answer to those questions suggests that the care fell below a reasonable standard, that’s where breach of duty may be found.
In order to determine whether the care provided was of an unacceptable standard, it is necessary to obtain a report from an independent expert practicing in the same area as the doctor or healthcare professional in question.
In a missed fracture case, there may be a breach of duty if an expert concludes that the fracture was visible on the original X-ray but not reported. In that situation, a radiology expert would be instructed, as it is the radiologist’s role to interpret the X-ray and confirm whether the fracture should have been identified at the time.
Experts can, however, hold different views about what amounts to unacceptable care in law. In medical negligence cases, both the claimant and the defendant will obtain their own expert evidence. Where the experts disagree, their opinions are considered by a judge at trial, who will decide which evidence is more persuasive and which opinion is the more logical and reliable in the circumstances.
Causation
The final step that must be proven is that the unacceptable care caused the injury. Put simply, you must show that ‘but for’ the breach of duty the injury would not have occurred. Proving causation can be difficult as it is necessary to establish whether the injury would have occurred anyway, or whether it is a direct result of unacceptable care.
To use a metaphor: causation can be thought of as the bridge that connects the breach of duty to the injury. On one side of the river is the substandard care; on the other is the harm suffered. For a negligence claim to succeed, that bridge must be strong enough to link the two. If the bridge doesn’t exist — if the injury would have happened anyway — then the claim can’t succeed, even if there was a breach of duty.
Causation is therefore a vital element to prove negligence, and even if there is strong evidence of injury and breach of duty if these two elements cannot be linked, then negligence cannot be established.
Using the missed fracture example, causation would be established if the failure to report the fracture led to a delayed diagnosis, causing the bone to move out of position and require surgery that could have been avoided with timely treatment. However, if surgery would have been necessary regardless of the delay, causation would not be proven and a negligence claim could not succeed.
As you can see, the steps that need to be taken to prove medical negligence claim are not straightforward. That is why we always recommend that specialist medical negligence advice should be obtained.
Quote from author, Lauren Kerse, Associate Director and Specialist Medical Negligence Solicitor from MDS, said “I often meet with people who have been injured, who simply want to know whether the injury they have suffered is because of negligence. This can only be determined through a thorough investigation of the facts, as well as obtaining the crucial evidence from the right experts to consider that question. This is why thorough knowledge of the elements of negligence as well as knowing the right experts is vital to the investigation of the claim. Choosing a law firm that has this experience and knowledge can often mean the difference between success or failure of your claim.”
