What is Clinical Negligence?

While the NHS in the UK generally provides patients with a very high-quality level of care, mistakes do sometimes occur. There will always be certain risks that are unavoidable, risks from entering the hospital environment itself, and risks from accepting any form of treatment. Simply having a bad experience in hospital doesn’t mean that negligence has occurred, but in some cases, the behavior and actions of individuals, or institutions as a whole, can meet the criteria for negligence.

Bringing a medical negligence claim against a hospital successfully results in damages being awarded to the claimant. However, the courts have no power to force a hospital to punish individuals, to change their practices, or to compel anyone involved to make a direct apology to the claimant.

Negligence is defined as the breach of legal duty owed to one individual by another. Within the context of clinical negligence, this refers to the legal duty of care that doctors have towards their patients, which results in damage being caused to that person. Clinical negligence, which is sometimes referred to as medical negligence or medical malpractice, is concerned with claims that are made against healthcare providers and employers by patients under their care.

In order to bring a successful claim for negligence, the complainant must show that an individual doctor or the healthcare institution, responsible for their care owed them a duty of care and failed in that duty.

Duty of Care

It shouldn’t be at all difficult to prove that a duty of care exists between a doctor, or their medical team and the patient that they are treating.  This duty of care extends beyond the individuals who are directly responsible for the patient’s care, and includes nurses, technicians, therapists, laboratory staff, anyone whose input effects the care that a patient is given.

If you decide to pursue a claim of medical negligence, then you will want to hire the best medical negligence solicitors you can. The Medical Negligence Experts are one such group who can help you ascertain whether the doctors who have cared for you have breached their duty of care.

Breach of Duty

In order to make a successful medical negligence claim, it needs to be shown that the doctors caused harm to the patient, either by action or inaction. It must also be shown that the doctor’s action or inaction constituted behavior which fell below the standards expected of any reasonably competent doctor in the relevant field of medicine. This test, comparing whether the doctor’s behavior matches that expected of a qualified professional in their field, is known as the ‘Bolam test’. Medical negligence lawyers will be able to help you decide if your case satisfies this test.

In recent times, courts have further mandated that wherever a body of medical opinion is being relied on to ascertain whether a particular doctor was negligent, it must also be shown that the medical opinion being sought is in itself logical and reasonable.

Causation

Not only must it be shown that the doctor and medical team have failed in their duty of care, the claimant must also show that this failure was either the direct cause of their injury or that it significantly contributed to the injury. This is often the most difficult element of the claim to demonstrate in court. While it might be easy to demonstrate that a doctor did something wrong, it is not necessarily easy to prove that this failure on their part was directly responsible for the patient’s injuries. As an example, a patient may have little difficulty in demonstrating that the diagnosis they were given by a psychiatrist was incorrect, but it is much harder to demonstrate that this directly resulted in subsequent mental distress, or physical harm arising from such distress.

It is also worth noting that even if an individual or institution admits a breach of duty, this in itself is not enough to prove a case of negligence. A clear link between that breach and the patient suffering harm must be demonstrated.

Damage

Once a claimant has established both a breach of duty and subsequent causation, they then need to establish that they had suffered the damage for which the claim is being pursued. The definition of damage includes both physical and psychiatric injuries, as well as financial loss of earnings and any additional expenditures that are incurred as a result of future healthcare needs.

The term psychiatric injury, as understood by the court, requires that the condition be a recognized psychiatric injury and fit the generally accepted diagnostic criteria.

In making their assessment, the court will consider the position that the claimant would be in had the negligent act not occurred. Where it is determined that either physical, psychiatric, or financial injury has occurred, the court will then determine the value of any compensation to be awarded, using previous cases as guidance.

Not all losses are recoverable. Courts will not award damages for losses deemed to be too ‘remote’. Losses are considered remote if they are not foreseeable. For example, if a psychiatrist incorrectly diagnosis a patient as suffering from a serious mental health disorder, and then that patient is denied a work visa to another country as a result, so they are unable to claim for losses resulting from lost business.

The compensation awarded for any injury, whether it is physical or psychiatric, will be divided into an award for pain and suffering, and one for any ‘loss of amenity’. The loss of amenity refers to the benefit and enjoyment of life, which a claimant has lost as a result of the damage that they sustained. These types of damages are known as general damages. In addition, the court will also award damages as appropriate for any loss of past and future earnings.

Potential claimants should note that, in most cases, the general damages awarded are very low. Where the damages awarded are high, this is usually in consideration of future loss of earnings rather than damages for the injury itself. Try searching for ‘medical negligence UK’ or ‘medical negligence claims UK’ to find previous examples and get an idea of what you could be entitled to.

 Liability of Hospitals and Doctors

Healthcare professionals may be liable if they provide negligent treatment. However, their employers may also be liable under a principle known as ‘vicarious liability’. For example, a GP is liable for their own acts, and also the acts of those who work beneath them.

If the negligent healthcare professional was the employee of a service, such as a doctor employed by a hospital, then it would be the health trust who owns the hospital that will have to pay the damages should a successful claim be bought.

In cases where it is found that a hospital has failed to carry out the adequate training and supervision of its staff, or where the standards of hygiene have been inadequate, then the hospital themselves assumes liability for any negligence.

Often, when clinical negligence investigations begin, it will not be immediately clear who is responsible. Over the course of the investigation, it will be established who is liable and where the fault lies for any injuries. Making these determinations will inform the court’s decision as to who should ultimately pay out any damage claims.

In some cases, it might be difficult to establish exactly who is liable, either in terms of the negligence claims or in terms of financial responsibility for the final payout. In cases where there has been negligence from more than one individual, the subsequent investigation is often far more complicated.

Clinical negligence is something that none of us ever hope to experience. Fortunately, the standards of healthcare in the United Kingdom are generally very high, but mistakes do occur and when they do it is important that patients understand how to pursue compensation. If you think that you might have been the victim of medical negligence, then you should seek the guidance of medical negligence solicitors.