Medical negligence also known as clinical negligence is a form of professional negligence. It is an act or omission by a health care provider, where the treatment provided falls beneath the standard of practice expected from a professional of the medical community resulting in the patient suffering injury or even death. The act or omission is usually an error in judgment or a procedural mistake that could have reasonably been avoided. Medical negligence entitles the patient or their family to compensation, subject to loss being proven.
Examples of clinical negligence include:
- Failure to diagnose or making the wrong diagnosis
- Making a mistake during surgery
- Prescribing the wrong drug
- Failing to obtain consent before commencing treatment
- Not warning the patient of the risks a particular treatment carries.
Legal claims in medical negligence must be made within three years from when the incident occurred or when the patient first realises they have suffered an injury. Where the patient is a child, the time limit is inapplicable and the claim can be brought by the age of 21 because the three-year time limit begins at the age of 18 when the child becomes an adult.
Proving Medical Negligence
Clinical negligence cases are complex. The simple part is demonstrating that a duty was owed. Legally a clinician owes a patient a duty of care whenever they undertake care or treat. It is the second part that is harder to establish. There are two strands to the case both of which have to proven in order for the claim to be successful.
- Negligence – The medical practitioner is negligent in their treatment of the patient if the care received falls beneath medically acceptable standards; and
- Causation – The negligence or breach of duty of care directly resulted in an injury or death.
To define medically acceptable standards or reasonable standard of care is a complication in itself. The nature of it is subjective and is often proven by expert witness evidence. The expert would have to have the knowledge, experience, education and training of the specific issue. The expert’s testimony is used to establish whether the treatment and care provided fell below the standard of care expected from a medical professional.
Negligence or lack of negligence by the medical practitioner can be proved using the Bolam Test. The Bolam Test, which was established in the court case of Bolam v Friern Hospital Management Committee, says:
- A clinician would not have acted negligent if their course of treatment and care was in accordance with practice accepted as proper and responsible in the opinion of a responsible body of persons skilled in their specialty.
- Therefore the standard against which one is judged is that of their fellow colleagues in the same ranking, not the best or most wisest and prudent practitioner.
- The standard applied is of an ordinary and competent medical practitioner.
Once negligence is proven it is necessary to show that the second strand of the case also exists.
There are two forms of causation, which can determine whether the negligence of the practitioner resulted in the patient suffering injury or death. They are legal causation and factual causation. Sometimes for simplicity they are not distinguished in cases, however each must be demonstrated.
Legal causation is ascertained by the test of forseeability. The question to ask is whether the consequences of the breach of standard of care were reasonable foreseeable? If they were then could steps have been taken to avoid harm? In most cases it needs to be shown that the breach of care was known and foreseeable and would have potentially been avoided had normal medical protocol and policies been followed.
Legal causation prevents claims for unrelated injuries being included in a claim for compensation. Even if legal causation is proven, the injury or death being a direct result of clinical still has to be shown. This is known as factual causation.
Factual causation involves proving that the medical practitioner’s act directly caused the patient harm. It seems simple and easy to show, however in practice it is the opposite. The basic ‘but for’ test can be used to establish causation. The harm caused to the patient would not have occurred but for the negligence of the clinician. On balance therefore, if injury or death would have happened regardless of whether the practitioner was negligent or not, they cannot be held liable. Factual causation can be proven using further medical treatments, expert affidavits.