How to make a successful medical negligence claim
The basics
To win a medical negligence claim for compensation you must be able to show that there was:
- a duty of care owed
- a breach of that duty ('negligence')
- a causal link between the breach of the duty and the injury suffered ('causation')
- a loss or injury
All of these requirements must be satisfied. It is not enough, for example, to demonstrate a breach of duty without also proving that a patient's injury has been suffered as a result of that breach of duty.
Duty of care
It is necessary to establish that a doctor owes a duty of care to his patient. As you would expect, where a doctor is treating a patient a duty of care to that patient will arise. Therefore, establishing a duty of care is very rarely a problem in clinical negligence cases.
Breach of duty
In order to show that a doctor or nurse has breached their duty of care to a patient, it is necessary to demonstrate that they provided care for a patient which fell below the standard expected of any responsible body of other practitioners in the same specialty (or that they failed to provide care which a responsible body would have felt necessary). This hurdle has become known as the Bolam test after the case of Bolam v Friern Hospital Management Committee [1957] in which the principle was established.
In this case it was held that, "The test as to whether there has been negligence or not... is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
This means that if a clinician can show that he followed a course of action which a responsible body of medical opinion would deem to be correct, then he will be able to establish a defence.
A Court therefore requires evidence from expert independent medical witnesses to establish whether the treatment in question would be supported by a responsible body of medical opinion. It is not enough to show that a different doctor would have done something different. There are sometimes more than one way to treat a condition and each way can be acceptable. So, if there are two schools of thought about a particular aspect of treatment then a Court will not generally find a doctor to have breached his duty to the patient if he has acted in accordance with one of those schools of thought. The only exception to this arises from the House of Lords in Bolitho v City and Hackney Health Authority [1997] which explained that any responsible body of opinion must stand up to logical analysis. Doctors must therefore comply with a body of opinion which is both responsible and reasonable.
Causation
The claimant must show that the negligent treatment has caused him injury. The injury may be
- a direct injury resulting from the treatment
- a failure to make a recovery from a medical condition
- a medical condition that has been made more serious
The important point is that it must be caused by the negligent treatment. In other words, the claimant must show that if he had received the right treatment he would not have suffered the injury.
The claimant will need to prove his case on causation using the views of independent medical experts. The evidence will need to consider not only what happened following the negligent treatment but also what would have happened if the right treatment had been provided.
The Court works on the basis of what would happen on the balance of probabilities. (i.e. is a particular event more than 50% likely to have happened?). For example if a Court was persuaded that, with correct treatment, a Claimant has a 51% chance of recovery, the Court would take the view that recovery would occur. But if a Claimant had only a 49% chance of recovery, the Court would take the view that recovery would not occur.
Loss or injury
If it has been possible to establish a duty of care between the patient and the clinician, that the clinician breached that duty and the breach has caused injury of loss, then damages may be recoverable.
Damages include a sum of money to compensate the claimant for their pain and suffering and the effect of the injury of their enjoyment of life ('general damages') and compensation for specific financial losses suffered as a result of the negligently caused injury ('special damages').
The list below gives examples of typical types of special damages which the court may award to a claimant (obviously these will depend on the circumstances of each individual case):
- loss of earnings up to the date of trial and into the future
- medical expenses prior to trial and into the future
- expenses and services rendered by other people (often family members) as a result of the claimant's injuries, such as nursing care, gardening, housework and the upkeep of the family home
- compensation for the cost of buying in care needed to help the claimant as a result of the injuries prior to the trial and into the future
- expenses relating to the cost of living with disabilities, such as the cost of a wheelchair, installation of a stair lift and adapting furniture, for example
- loss of a pension
- increased accommodation costs
- items of specific loss - bus fares, prescription charges and taxi fares
To arrange a free discussion with a medical negligence solicitor click here or call us on 0800 0382 382. We are available to take your call twenty four hours a day, seven days a week.
