24 June 2019

HOW DO I PROVE A CLAIM FOR CLINICAL OR MEDICAL NEGLIGENCE?

Domini David, partner in the Personal Injury and Clinical Negligence Team, takes a look at what’s needed to prove a claim for clinical or medical negligence. When making a claim for clinical/medical negligence it is not simply enough to show that something went wrong with your medical treatment.  You have to show that there has been a breach of the duty of care that the medical practitioner owed to you.

What are the medical practitioner’s duties to you?

Essentially medical practitioners owe a duty of care to their patient and that duty is to take reasonable care to do the following:

  • Take a proper history
  • Investigate your symptoms and complaints properly
  • Make a proper or if necessary differential diagnosis
  • Refer you to a specialist if necessary
  • Provide a reasonable course of treatment
  • Following up afterwards if necessary

As to what is reasonable, the medical practitioner is judged within the context of their clinical field.  So for example, if you believe that you may have a claim against your own GP for failing to treat you properly, then the care your GP gave you will be tested against the standard of care of a body of reasonably competent GPs.

It follows that a claim against a Neuro Surgeon would be tested against standard of care of a reasonable body of Neuro Surgeons.

How do you establish a claim for breach of duty?

  1. the appropriate standard of care must be determined,  and
  2. you need to show that the treatment you received fell below that standard.

The burden of proof is on you (if you are the person making the claim) to prove that the doctor who treated you breached his duty of care and that you have been injured as a result.

To defend or defeat a claim for clinical negligence, a doctor needs to have evidence from a medical practitioner of the same expertise to show that the treatment administered was within the range of reasonable approaches of a respectable body of doctors.

The test for proving breach of duty was established in the case of Bolam v Friern Hospital Management Committee which provided that a doctor is not negligent if “he has acted in accordance with the practice accepted as proper by a responsible body of medical men in that particular art”.

In Bolam, the Claimant, a patient at the hospital suffered psychiatric illness.  He was advised by a consultant to undergo Electro Convulsive Therapy (ECT).  At that time some physicians recommended restraining the patient during the ECT, while others did not.  Mr Bolam was not restrained and sustained dislocation of both hips and fractures to his pelvis.  He sued, asserting that the doctor had been negligent in failing to tie him down.

The Judge in this case established the test finding that “a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art….. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view”.

The Bolam test has been applied in clinical negligence claims since then with virtually no amendment.

An Example

Clinical/medical negligence claims are often difficult to prove as whilst it may seem obvious to you that your treatment has gone wrong, this does not necessarily mean that there has been a breach in the duty of care owed to you.  It may simply be a usual or acceptable consequence of the treatment.

We often receive enquiries from new clients in connection with making a claim for clinical negligence having suffered a fracture which has not been diagnosed at hospital.  One of our clients fell, injuring his wrist and attended A&E advising the doctors that treated him he thought he had fractured it.  They failed to diagnose the fracture on the x-ray and treated him conservatively.Essentially, they did not operate on him. They just put his arm/wrist in a bandage and sling.  The fracture was only diagnosed some four months later when he insisted that the x-ray should be reviewed, by which point surgical treatment was required to fix the fracture.

We were able to recover significant compensation for him to include the cost of having the surgery, to fix the fracture, carried out on a private basis.

If you believe that you may have a claim for clinical negligence against a doctor whether on the NHS or privately or against a dentist or other medical practitioner and would like some free advice from one of our specialist solicitors, then please get in touch with Domini David on 01932 234500.  We can offer “no win, no fee” in appropriate cases.

our lawyers deliver an excellent quality service, independently recognised by The Law Society and our many returning clients.

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