Medical negligence overview

Medical negligence claims are a way for people who have been harmed because of unacceptably poor medical treatment to obtain compensation. The sub-standard medical treatment could have been from a doctor, nurse, physiotherapist, hospital staff, dentist or anyone else involved in the medical professions.

There are several requirements for a medical negligence claim to be successful, depending on the circumstances of the particular case but, in all cases, for a claim to succeed it must be established that:

a) there was a breach of duty towards you such that the level of care fell below a minimum standard of competence (negligent act); AND
b) that you suffered injury as a result of that defective management/treatment (causation).

Positive expert evidence is required in support of the case. Expert evidence is needed both in relation to the negligent act and as to causation. In other words, for Medical Negligence London or any solicitor to win your case, it is not enough to show that the doctor was negligent, it must also be shown that the negligence caused the injury. In most cases it will be necessary to engage at least two medical experts – one to address negligence and the other, and the other the issue of causation. Proving the causal link is often the most challenging part of the case, and is often a key focus of our investigative efforts at Medical Negligence London.

Often people think they have a medical negligence claim when they do not. They may have been treated poorly by their doctor and nurses. They may have had an unexpected adverse outcome. The doctors may in fact have made a shocking mistake. But if both elements – negligent act and causation – cannot be proved, you will not succeed with a claim.

Negligent Act

A negligent act is a mistake made by the hospital, doctor or other medical practitioner treating you. Some examples of negligence are relatively clear cut. A surgeon may have left an instrument inside you. Your GP may have prescribed you the wrong medication. A consultant might have failed to diagnose you correctly. A junior doctor might have mis-read a drug chart. The list of possible mistakes that medical professionals can make is endless and at Medical Negligence London we have seen countless examples of what could be described as clear cut negligence – the type of mistake that no one could argue was acceptable.

On the other hand, there are many instances where it is questionable whether there has been negligence. These are situations where different doctors will disagree about the right course of action. For example, when presented with particular symptoms some GPs would order a blood test but others would not. Or in the operation theatre some surgeons would use a particular technique whist others would say it was out of date. Or in delivery of a child some midwifes would carry on with a natural birth whilst others would consider a caesarean section would be necessary.

In these cases, where there is not a consensus on the correct course of action, the law has traditionally been deferential to the medical profession. The basic law is set out in a case heard by the House of Lords about fifty years ago known to all medical negligence lawyers:Bolam v Friern Hospital and is commonly called the “Bolam Test”.

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art...a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes the contrary view...”

In essence, this means that if other doctors in the same speciality would have done the same, it will be very difficult to succeed in a medical negligence case, however poor the doctor’s conduct might seem to those outside the profession or even to other doctors. In other words, as long as the doctor can show that a body of other doctors in the same speciality would have done the same thing he will be in a strong position to deny negligence.

However, as we at Medical Negligence London never tire of telling Defendants and Courts, it is not enough to just show that there are other doctors who would have done the same; the behaviour must have been logical. The case telling us this, and one that is often at the heart of arguments made by Medical Negligence London’s team, is the famous (at least to Medical Negligence lawyers) decision in Bolitho v City and Hackney Health where the House of Lords told us that it is not good enough to just show some other doctors would have done the same; you need to show that there was a logical basis for what was done. As the Court held: “The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.”

How then does the court decide if there has been negligence? The answer is that it listens to medical experts. The heart of any medical negligence case is the expert medical evidence and at Medical Negligence London we place fundamental importance in ensuring that the experts we engage are the right experts for the case. A medical expert in a medical negligence case should not only be pre-eminent in his field – at Medical Negligence London the experts we instruct are often internationally acclaimed professors– but they must be experts in precisely the correct area of medicine. For example, if the allegation of negligence relates to an orthopaedic surgeon’s treatment of a knee, at Medical Negligence London we would want to engage a pre-eminent knee expert of unquestionable credentials. An orthopaedic consultant whose specialist interest is the spine would not be suitable, however eminent he or she is. Medical experts are often busy and sometimes it can take months – in some cases years – to find time in the diary of the right expert. But it is often worth the wait, as having the right expert on board is often the key to the case and is just as important as having the right legal team – it can make an enormous difference to the outcome of a medical negligence case.

Causation

Often the biggest hurdle in medical negligence claims is to establish that the negligence actually caused the damage. Frequently, the Defendant will admit negligence early on but deny causation on the basis that the negligence did not make any difference. A simple example is the case of Mrs Smith who was prescribed the wrong dose of medication whilst in hospital. She was given the wrong dosage on three occasions. However, at that point her drug charts were checked by a pharmacist who identified, and then corrected, the error. Doctors investigated the impact of the excessive medication and concluded that it did not cause Mrs Smith any harm.

At Medical Negligence London we advised Mrs Smith that she did not have a claim: although we would be able prove negligence – prescribing the wrong dose; we would not be able to show that the mistake caused any harm. Another example of this that we frequently see at Medical Negligence London is where there is a negligent delay in diagnosing cancer. An example is Mrs Jones, who was told by her GP that a lump on her breast was nothing to worry about. However, she changed GP shortly afterwards as she was moving home and her new GP, upon seeing the lump, sent her for the appropriate tests which found Mrs Jones had cancer. The issue of negligence was relatively clear cut – the first GP should have had the proper tests carried out which would have shown the lump was cancerous. However, had the first GP made the correct diagnosis it would not have made any difference to Mrs Jones treatment and so the causation element of the medical negligence claim could not be proved.

Conclusion

Medical negligence law is complex and the medical evidence upon which cases are determined is usually even more complex.

A successful case will need a highly skilled team of legal and medical experts who are able to understand and draw together the evidence and address the questions of both negligence and causation.