Bringing a claim in medical negligence: The basics

Millions of people every day undergo medical examinations, tests and treatment, whether through the NHS or privately. It is commonplace to visit your GP, your dentist or to have a hospital check-up; to undergo surgery; or even have a child.

More often than not, there is no complaint about the care and treatment provided. However, unfortunately, it is sometimes the case that the care and/or treatment you have received has caused you an injury or failed to identify and treat an existing injury or ailment and this can lead to devastating effects.

It can be very confusing trying to decide on your own whether the care and/or treatment received equates to negligence. This blog will guide you through the steps in bringing a successful Medical Negligence claim.

What is Medical Negligence?

In relation to Medical Negligence, the legal definition is that of conduct falling below the standard of a reasonably competent professional professing to have that skill.

The Four Hurdles

In order to be successful in a Medical Negligence claim, you will need to overcome four hurdles:

1. The Defendant owed you a duty of care;
2. The Defendant breached that duty of care;
3. The breach of duty caused an injury (Causation); and
4. The value of the negligence claim means that it is reasonable and proportionate to be pursued.

Duty of Care

Establishing that the Defendant owed you a duty of care is usually the simplest step in a Medical Negligence claim.

In the relationship between a medical professional (e.g. Doctor) and a patient, the default position is that the medical professional owes the patient a duty of care to act in their best interests.

Who is the Defendant?

At the outset of a potential claim, it is often the case that the identity of the Defendant is not known. If instructed in a Medical Negligence claim, Burnetts will take all the necessary steps to correctly identify the Defendant(s) whether it be an individual practitioner, an NHS Trust or a company.

Breach of Duty

The next step in bringing a successful medical negligence claim is establishing that the medical professional has breached the duty of care they owed to you, their patient.

This means that to prove negligence you must prove the treatment received fell below the accepted level of any responsible group of professionals in the same speciality. For example, if the negligence claim is against a General Practitioner, they must have done (or omitted to do) something that no other reasonable General Practitioner would have done.

It is important to recognise that, as in all walks of life, in medicine there are often different schools of thought. To be successful in a Medical Negligence claim, it is not sufficient to simply prove that another medical professional or even body of medical professionals, would have acted differently, you have to establish that no reasonable body of medical professionals operating in the same field would support the decisions made in your case.

The Bolam Test

The case of Bolam v Friem Hospital Management Committee (1957) established that in determining whether a Defendant has fallen below the required standard of care (therefore proving negligence) regard must be shown to responsible medical opinion, and to the fact that reasonable doctors may differ. A practitioner who acts in conformity with an accepted current practice is not negligent merely because there is a body of opinion which would take a contrary view.

As long as a Medical Professional is operating within the accepted practice, then there will be no negligence.

The next stage in pursuing a Medical Negligence Claim is establishing causation: that the Defendant’s actions were the cause of the injuries sustained. It is important to recognise that, for example in cases of delayed diagnosis, an exacerbation (worsening) of the initial condition and/or prognosis is an injury in itself.

The first test applied in an effort to establish causation is called the ‘but for’ test; ‘but for’ the Defendant’s negligence, you would not have sustained injury.

Sometimes in Medical Negligence, it can be impossible to prove causation through the ‘but for’ test (for example there might have been multiple causes of an injury, some non-negligent). In such cases, there is a second test that can be applied, this is caused the material contribution test. In such cases, it has to be established, that the breach(es) of duty materially contributed to the injury and that the contribution is more than minimal.

Quantum

Quantum is the term used to describe the value of your negligence claim. There are two elements to Quantum:

1. General Damages (the compensation for your injury; your pain, suffering and loss of amenity)
2. Special Damages (the losses and expenses incurred as a consequence of the negligence)

Expert evidence on your condition and prognosis will form the basis of the valuation of General Damages and you would be required to evidence losses and expenses you have incurred through, for example, receipts, invoices etc. However, where you have or are expected to have quite complicated losses such as a loss of pension or future care needs, expert reports may also be required to support such claims.

Scenario

Ellen went to the Doctors with a mole on her skin. The Doctor dismissed it and told her it was nothing. A few months later the mole had grown. Once again, the Doctor told her not to worry. A third time Ellen approached the Doctor and aired her concerns. The Doctor reluctantly agreed to do a biopsy on the mole. When the results came in it was found that Ellen had stage 4 skin cancer. Had it been diagnosed sooner, Ellen could have received treatment that would have improved her prognosis. At this late stage it was too late for Ellen to receive any treatment, her prognosis was terminal.

Why does Ellen have a claim in negligence?

1. There is a Doctor/Patient relationship,
2. The Doctor should have sent Ellen for testing when the mole had changed in shape or size.
3. But for the late diagnosis Ellen could have received treatment which would have improved her prognosis.

Who pays?

There are different ways in which a Medical Negligence claim can be funded. If a child is brain injured at birth then Legal Aid is available.

For all other matters we can look at a ‘No Win, No Fee’ Agreement (known as a Conditional Fee Agreement). This means that if your negligence claim is successful, the Defendant essentially picks up the legal bill.

If you believe you have ground to pursue a claim for Medical Negligence or personal injury, please contact our Medical Negligence and Serious Injury team on 0191 300 1833 or hello@burnetts.co.uk.