What is Clinical Negligence?
Clinical negligence or malpractice refers to a situation in which a healthcare professional or healthcare institution fails to provide the standard of care that is expected in their field, leading to harm or injury to a patient. It involves a breach of the duty of care owed to a patient and can result from errors in diagnosis, treatment, surgery, medication, or other aspects of medical care.
Clinical negligence can encompass a wide range of actions or failures to act, including misdiagnosis, surgical mistakes, medication errors, failure to obtain informed consent, and other acts of negligence that result in harm to the patient.
Steps involved in making a clinical negligence claim
The general steps involved in making a clinical negligence claim include:
Seek legal advice – start by consulting a solicitor who specialises in clinical negligence cases. They will assess your case and determine whether you have a valid claim.
Gather evidence – you and your solicitor will work together to gather evidence to support your claim. This may include your medical records, witness statements, expert medical opinions, and any other relevant documents.
Letter of claim – your solicitor will draft a formal Letter of Claim, which is sent to the healthcare provider or NHS trust responsible for your care. This letter outlines the details of your claim, the allegations of negligence, and the compensation you are seeking.
Pre-action protocol – the healthcare provider will have four months to investigate your claim and provide a response. During this time, they may admit liability or deny it. If they deny liability, your solicitor may need to gather more evidence to support your case.
Issue Court proceedings – if the healthcare provider does not admit liability, your solicitor may issue Court proceedings. This means your case will be heard in Court, and you will need to prepare for a trial.
Settlement negotiations – in many cases, clinical negligence claims are settled out of Court through negotiations. Your solicitor will negotiate on your behalf to reach a fair settlement with the defendant.
Trial – if a settlement cannot be reached, your case will proceed to trial. A Judge will hear both sides of the case and make a judgment. If you win the case, the Court will determine the amount of compensation you are entitled to.
Compensation – if you win your case, you will be awarded compensation for your injuries and losses. This can include damages for pain and suffering, loss of earnings, medical expenses, and other financial losses.
How to prove Clinical negligence?
A Clinical negligence claim will only succeed if all three of the following elements are proven:
- Duty of care – this means that the Defendant owed the Claimant a duty of care. In a claim involving clinical negligence, this test is satisfied because a healthcare provider always owes their patient a duty of care when providing treatment.
- Breach of duty – that the treatment provided fell below the standard of care that is expected to be provided by a reasonably competent body of medical practitioners.
- Causation – that the breach of duty resulted in an otherwise avoidable injury to the Claimant.
If the evidence supports the case in that a breach of duty exists but that breach has not made any difference to the outcome (ie the same things would have happened in any event) the claim will not succeed.
Legal Tests used to prove Clinical negligence:
Breach of duty:
1. Bolam test – The Bolam test stipulates that a medical professional will not be found guilty of negligence if they are deemed to have acted “in accordance with a responsible body of medical opinion”. They must be able to show that any medical professional who was in the same position as them would have done the same, giving the same outcome. In those circumstances, a case would fail.
2. The Bolitho test – The rules surrounding the Bolam Test were amended following the 1998 Bolitho case, based upon the importance of logic in decision making. Following the case of ‘Bolitho v City and Hackney HA [1998] AC 232’. The House of Lords clarified the Bolam test to include a proviso that the practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds. So, where it is possible for a doctor to argue that the facts of the case did not support a claim for Bolam negligence, the Court must decide whether, in the given circumstances, the treatment provided withstands logical scrutiny. If the Court finds it does not withstand such scrutiny, it will find in favour of the Claimant.
Causation:
When it comes to establishing causation, often it is not straightforward. One reason for this is that we are looking at the hypothetical question of what would have happened had there not been a breach of duty. Many clinical negligence cases also involve claimants who were already unwell before the treatment in question and therefore proving causation can be complex.
There are two important tests:
- The ‘but for’ test – The standard test for proving causation is the ‘but for’ test, ie ‘but for the negligent medical treatment, the injury to the claimant would not have occurred‘.
Therefore, the claimant must show their injury was caused by the negligence and that the loss or damage they suffered would not have occurred had the negligence not occurred.
It is for the claimant to prove this ‘on the balance of probabilities’. This means it must be proved that it is more than 50% likely the injury was caused by the alleged negligence.
- The material contribution test – The ‘but for’ test can clearly cause problems for claimants in cases where there may be multiple causes of the injury. In such cases, it is appropriate for a modified test to be applied and the Court is asked to consider whether the alleged negligence made a contribution to the injury and if the contribution it made to the injury was ‘material’. This is known as the material contribution test.
In order to succeed under this test, it must be shown that:
- The negligence contributed to the damage/injury itself and did not just cause an increased risk of injury/loss, save for in exceptional cases.
- The contribution must be material – this means more than negligible, and it is for the Court to choose the measure of materiality.
Where there are multiple causes of injury, and the medical expert is unable to differentiate between the outcomes caused by negligent actions and those caused by non-negligent actions, the Claimant recovers compensation for their injury in full.
Comment
Clinical negligence claims are difficult, lengthy, and complex. There are a number of steps to be taken in order to prove a claim. It is a commonly held misconception that in order to succeed with a clinical negligence compensation claim, it is enough if the Defendant admits that there was a breach of duty of care, but there is much more to a clinical negligence claim than this. All three elements must be proven for a claim to succeed – duty, breach, and causation.
When making a claim a specialist and experienced legal team are vital to thoroughly understand the issues and determine whether a case has merits to succeed.
How can we help?
Burhan Alam is a Paralegal in our Medical Negligence team, which has been ranked in tier one by the independently researched publication, The Legal 500.
At Nelsons, we have an experienced team of solicitors across our offices in Derby, Leicester and Nottingham who are always happy to discuss the circumstances of your claim and advise you on whether you are likely to be successful.
Please call 0800 024 1976 or contact us via our online form for more information.
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