Advice Centre

Your story is important...

Free 24 hour claim assessment


Posted on 21st April 2017

How Do You Prove Medical Negligence Claims

It can be really traumatic to be the victim of medical negligence. It's enough that things can go wrong and you're left with the negative effects - but, on top of that, you'll also need to prove that you have a case for a medical negligence claim.

To prove a medical negligence claim your case has to pass a three part test. It's not enough to have simply been caused harm because of your medical care - it has to be proven that this harm was a direct result of a failing on the part of your medical practitioner. The test to prove a medical negligence claim is made up of these three parts:

  • A person was meant to look after you in a certain way. This is known as "duty of care".
  • That person (or organisation) has failed to look after you in the way they're meant to. In legal terms this can be described as "a breach of duty of care".
  • Because that person has failed to look after you in the way they are meant to, you have been harmed. You can find out more about what counts as "harm" below.

What is the Legal Definition of Negligence?

For negligence to have taken place there must have been a breach of duty of care, and that breach of duty of care must have resulted in harm.

What is Duty of Care?

Duty of care is a standard of care that an individual or organisation has to meet if they are providing a service that could potentially cause harm to someone.

This standard of care can come from:

  • Specific guidelines that are issued by official bodies
  • An established current industry standard
  • The practitioner's experience and level of expertise

So that means a new junior doctor won't be expected to have the expertise of a consultant.

What is The Definition of Harm?

The definition of harm includes physical and psychological harm. It also includes emotional harm, financial loss, loss of dignity or the neglect of a legal right.

The Definition of Medical Negligence:

Negligence in a medical setting occurs when a medical practitioner or organisation fails to meet common, and (where relevant) specific standards of care. This can include:

  • A consultant failing to inform the patient appropriately of the risks of a treatment that they are about to undertake, or failing to get the patient's consent (where they're fit and well enough to give consent)
  • A GP failing to perform sufficient tests to investigate the symptoms you have presented which results in delayed diagnosis or misdiagnosis
  • A surgeon who makes a severe error like treating the wrong leg, for example. This counts as negligence because the surgeon should have enough expertise, training and experience to not make this kind of mistake

Each case is unique and negligence has to be proven according the exact details of your claim.

What is Duty of Care in a Medical Context?

When it comes to medical negligence the standard of care is defined in terms of:

  • The industry standard at the time of the incident
  • The professional's training and level of experience
  • With some treatments, specific guidelines that are in place

For example the Standards of Care for the Health of Transsexual, Transgender and Gender Nonconforming People, which is also taken into account in relevant cases.

A Quick Example:

If a junior doctor makes a mistake, it might not count as negligence since the mistake could be seen as understandable considering their experience and expertise, just like it is normal for a trainee or new employee to make a mistake at first However, in this instance it may be proven that their supervising consultant was negligent in their responsibility to properly support the junior doctor. The supervising consultant should have ensured they didn't make such a harmful mistake.

What is Harm in a Medical Context?

Harm is often a physical or psychological injury, these can be one-off injuries or long-term, on-going illnesses Harm can also be financial, so if you have had time off work, or lost your job altogether because of your injury, this will count as harm in your case.

Proving a Duty of Care:

The "Bolam Standard" is used to prove a duty of care in medical negligence cases. This is used to define the common medical standard at the time and to take into account the professional's training and experience.

The Bolam Standard - a Really Quick Explanation

In Bolam v Friern Hospital Trust 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 definitive.

Proving Harm and Causation:

Harm itself can be easy to prove by using medical histories and evidence related to income, for example bank statements, payslips and evidence supplied by an employer. The hard part is proving that the harm has been caused by a practitioner failing to care for their patient properly.

For example, if you go under anaesthetic, have surgery, are administered medicines and more, certain injuries could potentially be attributed to a number of these different treatments - how do you establish who made the error, where they made it and whether they actually failed to meet the right standard of treatment?

Difficulty proving a connection (known as causation) is one of the major reasons why negligence claims are unsuccessful. However, if it can be proved that the harm was more likely caused by negligence than something else, then that's normally enough to prove the case.

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:

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.

Further Information