What is medical negligence?
Medical negligence can be defined broadly as ‘any unjustified act or failure to act upon the part of a doctor or other healthcare worker which results in harm to the patient’.
Examples include:
- An inaccurate, incomplete or delayed diagnosis
- Incorrect medication or prescription
- Errors made during surgery or a procedure
- Failure to notify of risks associated with treatment
- Failure to obtain informed consent
Time constraints for medical negligence claims
Generally, a claim must be started within three years from when the negligent event occurred, or the date of when you initially discovered you had suffered harm or injury. There are exceptions to this rule. Concerning children, there are no time limits imposed on a claim until the child reaches the age of eighteen. Once the child turns eighteen, the standard time limit of three years applies. Additionally, a person who is deemed to be lacking the mental capacity required to claim by themselves will not be subject to a time limit for their claim.
How long will a claim take?
Medical negligence claims are often complex and gathering the necessary evidence can be time-consuming. The duration of a claim can be anywhere between twelve months and up to five years. It is important to note that the time it takes for each case to be resolved is dependent upon various circumstances and facts. If the case is uncomplicated, there is a higher chance that it will be resolved within a few months.
Compensation entitlements
Compensation is available for victims of medical malpractice and is aimed to put you in the position you would have been in had the negligent act not occurred. For more severe cases where the victim’s injuries have significantly impacted their normal life, compensation aims to make the duration of their life more comfortable. Courts will determine the sum of compensation that is to be awarded, this is referred to as ‘damages’. The amount is dependent upon the facts of each case and the impact it has had on the victim’s quality of life.
There are two types of damages:
- General damages- this compensates the victim for the pain and suffering endured, and for the loss of enjoyment of life as a result of the negligent act.
- Special damages- this compensates the victim for any personal costs incurred as a result of the negligent act. It can also cover any additional costs required in the future. This includes:
- Costs of medication and treatment
- Loss of income and earnings
- Cost of additional medical apparatus
- Travel cost and parking expenses
Requirements for a successful claim
For a claim to succeed, the following elements must be established:
- The healthcare professional owed you a duty of care
- The healthcare professional breached this duty by falling below the expected standard of care
- The harm or injury caused was the direct result of negligence (causation).
Duty of care
Generally, there are no issues in establishing whether a duty of care is owed. All healthcare professionals owe their patients a duty of care. This is typically created as soon as the patient enters into the establishment in which they are seeking treatment and carries on throughout.
Breach of duty
This occurs when the healthcare professional fails to act following the standard level of care expected. The renowned case of Bolam v Friern Hospital Management Committee states that healthcare professionals must act in a way that demonstrates that they possess the skills required in the ordinary standards of their profession. Those in the profession must also ensure their medical knowledge is current.
When considering whether the appropriate standard of care has been reached in a particular case, courts will apply the ‘Bolam test’ based on the aforementioned case. What must be determined under this test is whether the healthcare professional conducted themselves in a manner in which other healthcare professionals would have under the same circumstances. Courts are aware that the field of medicine is constantly evolving and do not expect the standard of medical practice to be identical in each case; therefore, they seek to establish whether the healthcare professional has complied with accepted practice in the profession.
Causation
Provided the first two elements are satisfied, the final step for a successful claim is to establish causation. It must be shown that the breach was the direct factual and legal cause of the harm or injury suffered by the patient.
Factual causation
For a claim, it must be determined whether the healthcare professional’s breach of duty was relevant to the harm or injury suffered by the victim. This can be established through the use of the ‘but for test”, which is relatively straightforward. The question to be posed is: but for the negligent medical treatment, would the victim have suffered harm, injury or loss? If the answer is no, then the action has caused the harm or injury and factual causation is established. If there is no factual causation the claim will not succeed, and this decision cannot be appealed.
Legal Causation
Once factual causation is proved, courts will then proceed to look at legal causation. In most cases, proving the legal cause of the harm or injury suffered can be difficult and can hinder the success of a claim even when factual causation has been established. Following the decision in the case of The Wagon Mound (No1) the ‘remoteness’ of damage is assessed, and the question posed is whether the materialised harm or injury was reasonably foreseeable. Injuries that are deemed ‘too remote’ and ‘reasonably unforeseeable’ do not meet the requirements for legal causation and the claim will be unsuccessful.
Victims must be able to prove that the negligence contributed to the harm or injury itself and that the contribution was significant. In other words, there must be no other possible complete cause of harm or injury.
Burden of proof
The burden of proof required for cases of medical negligence must be on the balance of probabilities. Put simply, there must be at least a fifty-one per cent chance that the harm or injury suffered by the victim is a result of negligence. This is sometimes referred to as ‘more likely than not.
Informed consent
Informed consent can be defined as ‘the process in which a healthcare provider educates a patient about the risks, benefits and alternatives of a given procedure’. It is unlawful for healthcare professionals to treat patients without obtaining appropriate consent. The decision in Montgomery v Lanarkshire makes it clear that healthcare professionals must not decide for themselves what information to disclose to patients when undergoing treatment. Failure to do so amounts to negligence due to the absence of informed consent.
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