Do I have a Clinical Negligence Claim?

Article by Anne Dickinson (Clinical Negligence Solicitor)

96% of the NHSLA's cases are settled out of Court. An analysis over the past 10 years shows that 41% of cases were abandoned by the Claimant, 41% settled out of Court and just 4% were settled in Court (mainly Court approvals of negotiated settlements) and 14% remain outstanding. Fewer than 50 clinical negligence cases a year are contested in Court.

(Statistics from www.nhsla.com)

Establishing a legal case for anything, especially Clinical Negligence, can at times seem confusing. By breaking it down, it can seem less daunting. In order to understand the legal elements that are required for a successful Clinical Negligence claim, we can break the requirements down into four steps.

The Legal Elements Required:

  1. There was a duty of care owed to you
  2. There was a breach of that duty (negligence)
  3. This breach caused the injury you suffered
  4. This resulted in a loss or injury

1. Duty of care

Establishing there is a duty of care is usually straightforward in clinical negligence cases, because where a doctor is treating a patient, a duty will arise.

2. Breach of Duty

In clinical negligence cases, in order to show a medical practitioner has breached his or her duty of care, it is necessary to demonstrate the care provided fell below the minimum standard of any reasonable body of other medical practitioners practising in the same field of expertise. This test is called "The Bolam Test" after the case of Bolam v Friern Hospital Management Committee [1957].

In this case it was established 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."

This means that if a medical practitioner can show she acted in a manner, which a responsible body of medical opinion would deem to be correct, then a defence will be established. There is often more than one way to treat a particular condition and it is not enough to show a different practitioner would have treated the patient differently.

This principle was developed further in the case of Bolitho v City and Hackney Health Authority [1997]. This case established that any responsible body of medical opinion must stand up to logical analysis. Therefore medical practitioners must follow a body of opinion, which is responsible, reasonable and stands up to logical analysis.

Evidence is obtained from an independent medical expert witness for the Court to determine whether the particular treatment used would be supported by a responsible body of medical opinion.

3. Causation

The Claimant must show the negligent treatment caused the injury in question and that if the correct treatment had been received the injury would not have been suffered. This must be established on the balance of probabilities i.e. it is more probable than not (51%. 49% would not be sufficient) that if the correct treatment were provided, the injury would not have been suffered.

Again, evidence from an independent medical expert witness is obtained to prove causation.

In the case of Bolitho mentioned above, a two-year-old boy was admitted to the defendant's hospital suffering from respiratory problems. The following day he suffered two short episodes of further respiratory problems. On each occasion a doctor was called but did not attend. Following the first episode, the child recovered. Following the second, the child appeared to recover but half an hour later collapsed due to a failure of his respiratory system and suffered a cardiac arrest. As a result of which he suffered severe brain damage, and subsequently, after proceedings were issued, died. It was agreed the cardiac arrest would have been prevented if after the respiratory problem the child had been intubated. The defendant admitted failure to attend was a breach of duty, but argued that even if the doctor had attended, she would not have arranged for the child to be intubated, and therefore the breach of duty did not cause the injury. The Claimant argued that in such a hypothetical situation a failure to intubate would have been negligent. The Judge in this case heard expert evidence on behalf of the Defendant, which stated it would not have been appropriate to intubate. The Court thus held a decision that not to intubate would have been in accordance with a reasonable and responsible body of medical opinion, and therefore the Claimant had failed to prove the breach of duty had caused the injury.

4. Loss or Injury

Once a duty of care has been established, that there was a breach of that duty, and that this caused injury or loss, then compensation may be recoverable.

A Claimant can claim compensation for pain, suffering and loss of amenity, sometimes referred to as "general damages". In addition, a Claimant can claim reasonable out-of-pocket expenses incurred as a result of the negligently caused injury. These are sometimes referred to as "special damages".

A Claimant can claim for past and future expenses and this is presented in the form of a Schedule. It is for you, the Claimant, to firstly prove the loss of expenses incurred, and secondly, that the loss of expense was caused by the negligently caused injury as opposed to unrelated factors. The first issue is generally a matter of documentary evidence, receipts to prove the cost of the items purchased. The second issue is generally a matter for medical evidence and we rely upon the medical experts to confirm that the loss or expense was reasonable, and caused by the negligently caused injury rather than by unrelated factors.

Here are some examples of the types of losses you may be able to recover:

  • Loss of earnings, past and future
  • Medical treatment costs, past and future
  • Aides and equipment
  • Travel expenses and prescription charges
  • Care and assistance provided professionally, or by family or friends

Ascot Lawyers can break down the process of a clinical negligence claim guiding you through the various stages ensuring the correct amount of compensation is received. Visit our Clinical Negligence section for further informaton or call us on 01344 783890

About the Author:
Anne Dickinson is a qualified solicitor specialising in personal injury and medical negligence. She has over 6 years experience dealing with all types of claim including road traffic accidents, accidents at work, accidents in a public place, product liability and medical negligence claims. She is a member of APIL.
Click to view Anne Dickinson's profile and contact information.

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