Advice Centre

Your story is important...

Free 24 hour claim assessment

Tick:



Posted on 2nd May 2017

Do I have Grounds to Make a Clinical Negligence Claim

How solicitors prove negligence

Trying to figure out if your experience with the NHS will count as medical negligence can be frustrating. You’ll often read that every case is different and that the only way to establish whether you have one is to speak directly to a solicitor.

Ultimately, this is true. There’s no fail proof way to figure out if you have been a victim of medical negligence without calling on some expert legal and medical knowledge to deal with the exact details of your case.

But, there are some points you can start to consider:

Negligence is established according to a three-part test:

  1. A person (so junior doctor, surgeon, nurse, GP, consultant) was meant to look after you in a certain way. This is called duty of care.
  2. That person (or an organisation as a whole) has failed to look after you in the way they are meant to. This is called breach of duty of care.
  3. Because that person has failed to look after you in the way they are meant to, you have been harmed. Harm, in this context, has a specific legal meaning.

So there are three parts: duty of care, breach of duty of care and harm.

What do these three parts look like?

Duty of care is not simply no mistakes in treatment, and it isn’t defined by what the patient expects

You could be unhappy with the care you receive, but this does not necessarily mean your doctor or nurse has broken their duty of care.

Duty of care is not care in the sense of being compassionate or having a good bedside manner (though you can definitely complain about a bad bedside manner).

The appropriate way to administer treatment and carry out a “duty of care” is established based on:

  • Current normal medical practices and knowledge
  • The medical practitioner’s level of expertise and experience

A doctor can make a mistake and it won’t necessarily count as negligence in the eyes of the law if it is established they provided an appropriate standard of care towards you when the mistake happened.

Why?

Because, for example, a junior doctor isn’t expected to have as much knowledge or expertise as a consultant, so if they fail at a procedure and a consultant has to take over, the first few mistakes won’t count as negligence.

This is because the junior doctor’s level it is ordinary for them to make some mistakes, and no harm has come to you.

A good example of this is administering an epidural. Often a junior doctor may have to try a few times to inject it, and sometimes a consultant will eventually have to take over. This is very unlikely to count as negligence since it’s reasonable for a junior doctor to struggle considering their level of training and expertise.

The standard of care that a medical practitioner has to live up to is known, in legal terms, as the “Bolam Standard”. It was established during a specific medical negligence case. Here’s a quick explanation of what happened.

The Bolam Standard - a Really Quick Explanation

In Bolam v Friern Hospital Trust (1957) a patient sustained fractures during an ECT (electroconvulsive treatment). ECT is used in severe cases of depression and other mental health problems - it involves administering electric currents to the brain to relieve symptoms. The patient alleged negligence because they weren't given a muscle relaxant before the procedure and had not been restrained or warned of the risk of fracture.

Negligence was not proven however, because at the time it was not standard practice to give a muscle relaxant, as different opinions existed as to the benefits and risks involved. So even though harm was caused, the duty of care to prevent that harm could not be proven.

The Bolam Standard has been criticised as it relies on medical expertise from either side, and this expertise can be in conflict. The Bolam test is used frequently in court cases but it is not considered perfect.

How is Harm proved?

Collecting evidence of harm is the easy bit – medical histories can be used to show that you’ve been injured in some way. For financial harm, payslips, bank statements and other evidence supplied by an employer should be sufficient to show that you have experienced a loss of earnings, or some kind of financial harm.

The difficult bit is proving who or what has caused the harm

Once there has been enough evidence to show that harm is present, your solicitor then needs to demonstrate that negligence – so your doctor’s poor treatment – has caused the harm.

This can be tricky because most medical treatments involve a number of different elements so it’s hard to say definitively that one factor is the cause.

For example, if you go under anaesthetic, have surgery and then are given medicines when you come out from surgery, often certain injuries could be attributed to any of these processes. It can become hard to establish who made the error, where and when they made it, and whether they actually failed to meet the right standard of treatment.

Difficultly proving this connection (known as causation) is one of the major reasons claims are unsuccessful.

It’s enough to prove the harm was most likely caused by negligence than by anything else.

If there's no other reasonable explanation, then the rule of 'res ipsa loquitur' or 'the thing speaks for itself' is used. For example, if a piece of surgical equipment is found in somebody's abdomen, a court would have assume that the surgeon left it there. A defendant (in this case the surgeon) would have to put forward another reasonable explanation to disprove this, which would be very difficult.

What your solicitor will need from you to help prove your case:

So a solicitor can proceed with your claim they will need the following

  • Access to your medical records (with your consent)
  • Details of your experience of the injury and any details of financial loss

Ultimately it's up to your solicitor to prove your case. They'll have the expertise and legal knowledge to apply the law to your situation. If you want to find out what actually happens during a negligence claim this page will take you through the step-by-step process.

Further Information

Articles