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The Clinical Negligence Process

The only outcome for a claimant that brings a successful clinical negligence claim is an award of damages.  The court cannot force a hospital to change its working practices or improve standards, it cannot discipline a health professional nor can it make a health professional apologise.

Negligence is the breach of a legal duty of care owed to one person by another which results in damage being caused to that person.  Clinical negligence (often called medical negligence) is concerned with claims against doctors and other healthcare professionals and their employers.  In order to succeed in a claim for negligence, the claimant needs to prove that:

  1. The doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury;
  2. There was a breach of that duty to take care;
  3. That the breach of duty has caused harm to the claimant; and 
  4. Damage or other losses have resulted from that harm.

These four elements will be analysed in turn.

1. Duty of care

Generally speaking there is little difficulty in proving that the doctor or medical team who are responsible for treating a patient owe the patient a duty to take care of him or her.  This also applies to other healthcare professionals such as nurses, therapists, laboratory workers, physiotherapists, mental health care teams and the ambulance service – this list is not exhaustive.

2. Breach of duty

It is necessary to show that whatever the doctor did (or did not do) fell below the standard expected of a reasonably competent doctor in that particular field of medicine.  The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to meet the standard of a reasonable body of other practitioners also skilled in that field. This is known as the “Bolam test”.  More recently, the court has stated that where a body of medical opinion is relied on to show that a particular doctor was not negligent it is also necessary to show that such medical opinion itself is logical and reasonable. In other words, it is not enough that there is a body of opinion supporting the doctor; the body of opinion itself must be reasonable. 

The duty on the doctor to act in a way that is reasonable applies whether the matter concerns treatment, diagnosis or advice.

In some cases, particularly in private healthcare, a patient may have a contract with a doctor in respect of his or her treatment.  In the absence of any specific provisions, the standard of care is the same as that described above. However, it should be noted that if a doctor guarantees a particular result then, if the doctor fails to produce that result, the doctor may be in breach of contract even if he or she has not in fact been negligent.

Sometimes the only explanation is that there has been negligence.  An example would be where a surgeon amputated the wrong leg.  In these sorts of cases there is a presumption that the doctor was negligent and it is then up to him or her to prove otherwise.

3. Causation

In addition to proving that the doctor has failed to meet the relevant standard of care, the claimant also has to establish that this failure either directly caused the injuries alleged or significantly contributed to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong but this failure cannot be shown to have caused the patient’s injuries.  For example, a patient may be able to show that a psychiatrist’s diagnosis was wrong, but it is much harder to show that this has contributed to his or her existing mental distress.  In some cases there has been a clear breach of duty, but no damage has resulted at all.  Again, in this case, no compensation would be payable.

It may sometimes be the case that the treating medical professional or their employer will admit that there has been a breach of duty.  However this is not enough to say that that person or employer is liable for any damages. In order to establish liability it must be shown that the breach of duty caused the damage.

4. Damage

A claimant who is able to prove breach of duty and causation then needs to establish that he or she has suffered damage for which a claim can be made.  Damage includes physical injury and psychiatric injury, as well as financial loss (such as loss of earnings and future healthcare provision).  Psychiatric injury is the legal term used by the court.  It must be a recognised psychiatric injury, such as post-traumatic stress disorder (nervous shock), anxiety disorder or adjustment disorder.  Grief or emotional upset are not injuries for which damages can be awarded.  

The court tries to put the claimant into the position he or she would have been in if the negligent act had not occurred.  Where physical injury or psychiatric injury has occurred, the court will determine the monetary value to be given to the injuries in accordance with previously decided cases. 

However, not all losses are recoverable.  A court will only award damages for losses which are not too “remote”, in other words, which are reasonably foreseeable.  For example, if someone is wrongly diagnosed as suffering from schizophrenia and, as a result, is refused a visa for a particular country, he may not be allowed to claim damages for the loss of any business he was hoping to do in that country. 

Compensation for any psychiatric or physical injury will include an award for the pain and suffering and “loss of amenity” (or the benefit and enjoyment of life which the claimant has lost). These are known as “general damages”. The court will also award a sum for any past and future financial losses that have been caused by the negligence. This will include lost earnings and the costs of care, aids and equipment (“special damages”).

It should be noted that awards of general damages can be very low.  Where damages are very high most of the money will usually have been awarded for future loss rather than for the actual injury itself.  For example, where a serious brain injury has occurred, the costs of future care and lost earnings will make up most of the award.