Pursuing a claim for medical negligence

Our Medical Negligence Solicitor Kim Huggins provides some advice on how to pursue a successful claim for medical negligence.
Medical negligence claims are intricate and lengthy and should be seen as a last resort.  Even where cases seem obvious, sometimes they will fail which can confuse and frustrate potential Claimants.

There are three essential elements that must be proven for a claim for medical negligence to succeed:

1. That the doctor/hospital owed a duty of care
2. That duty was breached
3. The patient suffered injury which was caused by that breach of duty

So what does this mean? 

Duty of Care

Private and state Doctors and nurses, NHS Trusts, opticians, dentists etc are all duty bound to exercise reasonable care so as to avoid the likelihood of causing injury to other people. If they fail to exercise a duty of care then there is a legal liability to compensate an injured person if that person has been injured as a direct consequence of those careless/negligent actions. 

Sometimes more than one specialist or clinician is involved in treatment provided to patients and it is therefore important to spend time identifying the correct parties involved in each individual case.

The test to prove breach of duty

Solicitors refer to Bolam -v- Friern Hospital (1957) when considering the prospects of each and every case. For short, it is referred to as the Bolam Test and it is as follows:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. So the man need not possess the highest expert skills.”

So a consultant will be measured against his peers (ie. other consultants) rather than by professors or such like.

The test continues:

“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…”

This can be difficult for Claimants to understand because it suggests that the medical profession sets its own standards and “closes ranks” if mistakes happen.

This is not the case. A mistake is just that and will therefore always be a breach of the doctor’s duty of care. To clarify this, the House of Lords passed judgment in 1998 in a case called Bolitho.

It is now clear that, in order to prove that a doctor has breached the required standard of care in your case, you will have to show either;

1. that there really is no other responsible body of doctors in the country who would regard the treatment as acceptable or,
2. that the practice does not withstand logical analysis.

Once over that hurdle you may want to breathe a sigh of relief – but we are not yet finished as the breach of duty is not in itself sufficient for the claim to succeed. A Claimant must also prove “causation”.

Causation

If we cannot establish that there has been a breach of duty then there can be no liability and the claim will fail. If, however, we can establish a breach or breaches, then we need to identify that, but for that breach of duty, the Claimant would not have suffered injury.

Difficulties arise because, in many cases, there is something already wrong with a Claimant for which they seek treatment. Therefore, we have to consider what the position would have been had there been no negligence. If the breach (the mistake) made no difference to the overall outcome then the claim will fail.

At Pinney Talfourd Solicitors we try and take the stress away from the Claimant and make the process as smooth as possible whilst gathering vital information and undertaking the necessary investigations in order to establish whether a claim is viable.

More information

If you should have a potential claim that you would like to discuss please contact our Medical Negligence Department on 01708 229444 or email mail@pinneytalfourd.co.uk


This article was written by Kim Huggins, Medical Negligence solicitor at Pinney Talfourd Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at March 2016.