Proving clinical negligence

Proving clinical negligence

Medical negligence is when healthcare providers such as doctors and dentists make mistakes or fail in their duty of care to you, leading to injury or making an existing condition worse.

The purpose of this blog is to set out what is legally required to bring a successful case for clinical negligence.

What is required to bring a successful case of clinical negligence?

In order to establish clinical negligence, also known as medical malpractice, the following three things must generally be proven:

1. Duty of care: The healthcare provider must have owed a duty of care to the patient. This means that there must have been a doctor-patient relationship, and the healthcare provider had a legal obligation to provide care that met the standard of care for their profession.

1. Breach of duty: The healthcare provider must have breached their duty of care by failing to provide care that meets the standard of care for their profession. This means that they must have acted in a way that other competent healthcare providers in their field would not have under similar circumstances.

1. Harm: The patient must have suffered harm as a direct result of the breach of duty. The harm may include physical injury, emotional distress, or financial loss, among others. It is important to note that simply being dissatisfied with the outcome of a medical procedure is not enough to establish negligence.

In addition to these three elements, it is also important to note that in order to establish clinical negligence, it must be shown that the breach of duty caused the harm. In other words, the harm must have been a direct result of the healthcare provider's breach of duty, and not caused by other factors.

What is a duty of care?

In clinical negligence, a duty of care refers to the legal obligation of healthcare providers to provide care that meets the standard of care for their profession. This means that healthcare providers have a responsibility to provide care that is reasonable, skilful, and appropriate for the patient's condition.

The duty of care arises from the doctor-patient relationship, and it is established when the healthcare provider agrees to provide care to the patient. Once the duty of care is established, the healthcare provider is legally obligated to provide care that meets the standard of care for their profession, based on their knowledge, skills, and experience.

The standard of care refers to the level of care that a reasonably competent healthcare provider in the same field would provide under similar circumstances. This means that healthcare providers must provide care that is in line with the practices and procedures that are widely accepted in their profession.

If a healthcare provider breaches their duty of care by failing to provide care that meets the standard of care for their profession, they may be held liable for any harm or injury that results from their negligence. This is why it is important for healthcare providers to take their duty of care seriously and to provide care that is safe, appropriate, and meets the needs of their patients.

What is a breach of duty?

In clinical negligence, a breach of duty refers to a healthcare provider's failure to provide care that meets the standard of care for their profession. The standard of care is the level of care that a reasonably competent healthcare provider in the same field would provide under similar circumstances. If a healthcare provider fails to meet this standard, they may be considered to have breached their duty of care.

A breach of duty can occur in a variety of ways, including:

• Failure to diagnose or misdiagnosis of a medical condition

• Delay in providing appropriate treatment or surgery

• Administering the wrong medication or dosage

• Failing to obtain informed consent from the patient before performing a medical procedure

• Inadequate communication with the patient about their diagnosis, treatment, and potential risks and benefits

• Failure to monitor a patient's condition or respond to changes in their condition

• Improper use of medical equipment or devices

When a breach of duty occurs, it means that the healthcare provider has not provided care that meets the standard of care for their profession, which can result in harm or injury to the patient. The breach of duty is an essential element in proving clinical negligence, as it is necessary to establish that the healthcare provider failed to meet their legal obligation to provide care that is reasonable, skillful, and appropriate for the patient's condition.

Until the Montgomery case, the leading case in establishing breach of duty in clinical negligence was Bolam v Friern Hospital Management Committee [1957]. The case established the Bolam test, which is a legal standard for determining whether a healthcare provider has breached their duty of care.

The Bolam test states that a healthcare provider will not be found to have breached their duty of care if their actions or decisions are supported by a responsible body of medical opinion, even if there is a body of opinion that disagrees with their actions or decisions.

In Bolam, the plaintiff underwent electroconvulsive therapy (ECT) to treat his mental illness, but he suffered injuries during the procedure. He claimed that the hospital staff had breached their duty of care by not providing sufficient information about the risks and alternatives of the treatment and for not properly restraining him during the procedure. The court held that the hospital staff had not breached their duty of care, as their actions were in accordance with the practice accepted as proper by a responsible body of medical opinion.

The Bolam test is still widely used today in determining whether a healthcare provider has breached their duty of care. It recognizes that healthcare is a complex and evolving field, and that healthcare providers are entitled to use their clinical judgment in making decisions about patient care. However, the Bolam test does not absolve healthcare providers of all responsibility, as they still have a duty to provide care that is reasonable, skillful, and appropriate for their patients' conditions.

The Montgomery case refers to the landmark legal case of Montgomery v Lanarkshire Health Board (2015). The case established a new legal standard for informed consent in medical treatment, and it has implications for the Bolam test in breach of duty in clinical negligence.

In the Montgomery case, the plaintiff was not informed of the risk of shoulder dystocia during childbirth, which resulted in her child suffering from cerebral palsy. The court held that the healthcare provider had breached their duty of care by failing to provide the plaintiff with the information she needed to make an informed decision about her treatment.

The Montgomery case established that healthcare providers have a duty to take reasonable care to ensure that their patients are aware of any material risks associated with a proposed treatment. The court held that the Bolam test should not be applied to the question of whether a healthcare provider has breached their duty to provide adequate information to their patients about the risks and benefits of a proposed treatment.

The Montgomery case therefore means that healthcare providers must provide their patients with the information they need to make informed decisions about their treatment, and that the standard of care is what a reasonable patient in the same circumstances would want to know. This is a higher standard than the Bolam test, which focuses on the judgment of the medical profession rather than the patient's individual needs and preferences.

Overall, the Montgomery case has significant implications for the Bolam test in breach of duty in clinical negligence, as it recognizes the importance of informed consent and places greater emphasis on patient autonomy and the duty of healthcare providers to communicate effectively with their patients.

What is meant by harm?

In clinical negligence, harm refers to the physical, emotional, or financial damage suffered by a patient as a result of a healthcare provider's breach of duty. Harm can range from minor injuries to permanent disabilities or even death, and it can have a significant impact on a patient's quality of life.

Examples of harm in clinical negligence include:

1. Physical harm such as injury or disability caused by medical treatment or surgical procedures
2. Emotional harm such as mental anguish, depression, or post-traumatic stress disorder (PTSD) caused by medical malpractice
3. Financial harm such as loss of income, increased medical expenses, or the cost of ongoing medical care due to medical errors
4. Loss of opportunity or loss of enjoyment of life due to the harm caused by the healthcare provider's negligence.

Why is clinical negligence different from other types of negligence?

Clinical negligence involves healthcare providers such as doctors, surgeons, nurses, dentists and other medically qualified personnel. Victims of clinical negligence by definition are often already ill at the time inadequate care is given, compounding an already difficult situation. Victims may be left not only with their original medical complaint but further injury caused by incompetent care.

Cases are often complex and the solicitors handling the action must have a knowledge of both law and medicine and the interaction between the two. This requires a significant level of expertise and skill from the solicitor.

What should I do if I think I have a claim for clinical negligence?

You should see your solicitor. They will take instructions from you about the circumstances of your treatment. They will then obtain all your relevant medical notes and records to ascertain precisely what treatment you were given. After going through the records and ensuring their accuracy, they will instruct an expert physician with the relevant expertise to determine if the treatment given to you was negligent. If the expert finds that the treatment given was below the standard you were entitled to expect they will advise you accordingly and you can begin an action for compensation against the healthcare provider who was responsible for your medical care.

How long do I have to make a claim?

Normally in personal injury law (but see below for clinical negligence matters), you have:

• three years from the date of your injury to make a claim

• If you are making a claim on behalf of a child, it can be made any time before the child reaches the age of 18. Once a child reaches the age of 18 and if they have the requisite mental capacity, they have a further three years to make a claim themselves until they reach the age of 21

• If the injured party does not have the requisite mental capacity then there are no time limits on when a claim can be made

In clinical negligence cases, the time limit (what lawyers call the “limitation period”) of three years will normally start either from the date of the act of negligence or from the date the patient knew or ought to have known that the injury or harm was due to an act of negligence. The date of knowledge can be years after the negligent act, for instance, if an operation was performed negligently and a patient was unaware of this, it may be years before the patient’s symptoms progress such as to necessitate medical attention. In such circumstances the patient could not have known that the original operation was performed negligently until the symptoms appeared and the time limit will therefore only run from the date of knowledge of such negligence – not when the operation was originally performed, which could be many years after the date of the original negligent act.

Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

How is my compensation assessed?

We divide compensation into a number of headings:

• Compensation for pain, suffering and the effect the injury has had on a client’s life (what lawyers call “general damages”). The exact amount depends on the severity and extent of the injury and its impact. This will include physical and emotional loss, suffering and pain and compensation for loss of enjoyment of life

• The injured party’s loss of earnings, past and into the future, including all job related benefits and pension loss (what lawyers call “special damages”). If your injuries have reduced your ability to work you will be entitled to the difference between what you would have earned but for the malpractice and what you can now earn

• If someone has had to stop or reduce their work because it was necessary to look after the injured party then the claim will include their loss of earnings, past and into the future, including all job related benefits and pension loss

• Cost of all medical expenses, past and future. This will include hospital bills and medication costs

• Cost of all therapy and rehabilitative treatment (including occupational therapy), past and future

• Cost of any nursing and domestic assistance, past and future

• Cost of any adaptions to property or the cost of new housing

• Cost of any adaptions to a vehicle or the cost of a new vehicle or travel or other costs

How long will my case take?

Clinical negligence cases are complex with a high level of legal expertise required. Expert reports from doctors are necessary and depending on the nature and severity of the injury, rehabilitative/care consultants and accountants may be instructed and such reports can take some time to prepare. Straightforward cases may be settled within a year. More complex cases will normally take 2-4 years to conclude.

Will my case to go to court?

The vast majority of cases that have a reasonable prospect of success are settled and do not go to hearing. This is the case even where court proceedings have been commenced.

How can the Kearney Law Group help?

We appreciate that no amount of money can go anywhere near putting you back to the position you would have been in prior to the substandard clinical care. What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss. We will ensure that you get the help you need now and into the future. Compensation will ensure you receive the best possible medical treatment, rehabilitation and care, both in the short and long term.

We are passionate about our work. We are easy to talk to and will keep you fully informed about the progress of your case. We are tech enabled and use software platforms to ensure your case is dealt with expeditiously and professionally. We are very experienced and have a team ready to deal with all aspects of your claim for clinical negligence.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on [email protected] or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.