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Alex Bone looks at a topic we are frequently asked about, ‘How to prove medical negligence’.
Breach of Duty
When considering how to prove medical negligence we must start by looking at the principle of ‘breach of duty’. In order to bring a successful medical negligence claim, the claimant has the burden of proof to satisfy three tests; that a duty of care was owed, that there was a breach of this duty, and that the breach of duty of care resulted in them suffering a physical or psychological injury (causation).
Duty of Care
Medical Practitioners
Medical practitioners such as doctors and nurses owe a duty of care to their patients. The duty of care is wide-ranging and can include the following:
- Assessing the patient’s condition by taking note of the symptoms they are experiencing, the patient’s opinion and views, as well as examining the patient where necessary.
- Keeping accurate and clear records.
- Providing medical treatment where necessary and following up with the patient if required.
- Keeping skills and knowledge up to date.
- Referring a patient to another medical practitioner or specialist if this is in the best interests of the patient.
Institutional Health Care Providers
Institutional health care providers such as the NHS or Foundation Trust can also be ‘vicariously liable’ where a breach of duty occurs as a result of a medical practitioner’s acts/omissions while in their employment. It is also possible for a negligence claim to be brought directly against the NHS or Foundation Trust, as a duty of care is also owed directly from institutions to patients.
The duty of care owed by institutional health care providers includes:
- Providing adequate training, support and supervision of staff.
- Ensuring all staff possess the appropriate levels of knowledge, experience and skill for the performance of their role.
- Providing the necessary equipment required to care for a patient’s needs and ensuring that all equipment is adequately maintained.
- Ensure that working conditions are adequate in order to reduce stress and fatigue amongst staff, that could otherwise put patients at risk.
Private Treatment
Doctors and surgeons who provide care at private hospitals and other institutions are usually independent contractors. Therefore, where a breach of duty occurs, vicarious liability will not apply to the institution that they are practicing in.
Private hospitals will only assume vicarious liability for breaches of duty of its own employees, such as nurses, or where it fails to provide adequate services and equipment.
Proving Breach of Duty
Establishing liability for breach of duty where a ‘never event’ occurs is usually straightforward. This could include cases where:
- An instrument used during surgery is left within the patient
- The wrong drug is administered; or
- Where an incorrect limb is amputated.
However, ‘never events’ are thankfully rare. Where a medical practitioner uses their professional judgement to provide one type of treatment over another, or decides not to act at all, liability for breach of duty is more likely to be disputed. This is often due to the fact that genuine differences of opinion exist within the medical profession, and a medical practitioner may not therefore be negligent even if the decision they took did not result in the outcome that the patient wanted.
A breach of duty will occur where it can be proved that the medical practitioner acted in a way that is not supported by any ‘reasonable body of medical opinion’. This is known as the ‘Bolam test’.
If the defendant can show that the medical practitioner acted in accordance with a reasonable body of medical opinion, they will have a defence to the claim.
Causation
The final test required to bring a clinical negligence case is proving that the breach of duty of care resulted in the claimant:
- Suffering an unexpected injury or condition.
- Suffering a pre-existing injury or condition that has become worse.
- Failing to recover from a condition that they were treated for, or a diminished chance of recovering from the condition.
- Passing away as a result of negligent treatment.
The claimant will need to prove to the court, on the ‘balance of probabilities’, that, but for the defendant’s breach of duty, they would not have suffered the consequences. As long as the claimant can prove that the breach of duty made a ‘material contribution’ to the injury, it will satisfy this part of the test as the breach of duty does not need to be the main cause of the injury.
How we can help with your medical negligence claim
If you need guidance on how to prove medical negligence in respect of your case, then please call our free helpline on 0333 888 0412 or email brief details of your case to us in complete confidence to info@medicalaccidentlawyers.co.uk. We will investigate your case free of charge and provide details of No Win, No Fee funding.