How does a solicitor prove breach of duty in a clinical negligence claim?

For a clinical negligence claim to be successful, you must be able to prove that the medical professional's actions or negligence caused or contributed to your injury.

Duty of care

Medical professionals have a legal duty of care for their patients. Doctors are expected to exercise reasonable skill when performing their duties in order to keep their patients safe. If acceptable care standards are not met, a doctor may be deemed to have breached this duty of care.

A medical professional who breaches their duty of care is not necessarily liable for their patient's injuries. You must also be able to show that your doctor's actions or negligence caused your injury.

The Bolam test

The test used to determine whether a medical professional has breached their duty of care is known as the 'Bolam' test (or principle).

The Bolam principle:

"tests whether the actions of the health professional in question could be supported by a ‘responsible body of clinical opinion" (sce. resolution.nhs.uk)

This means that medical professionals must be able to show that they acted in a way that a responsible body of medical professionals in the same field would regard as acceptable.

The Bolam test is essentially a peer review of a doctor's behaviour. If other doctors would have acted in a similar way, then the doctor is unlikely to have breached his duty of care.

This test is not about what could have been done, and more about what should have been done. It does not matter that other medical professionals might have delivered a different treatment or acted differently. Given the complexities of modern medicine, it is possible, and even likely, that a dissenting doctor might have done things differently. The key point is that a group of similar professionals think that the doctor acted in an acceptable manner.

See also:

Read more about the Bolam test

The 'but for' test?

For a clinical negligence claim to succeed, your solicitor will also need to prove that your doctor's actions caused your injury (causation).

The 'but for' test asks the following question:

"But for the alleged breach of duty, would the patient have been injured in the same way?" (sce. resolution.nhs.uk)

The ‘but for' test can be problematic. For example, if a patient receives a succession of poor care decisions, possibly from different doctors, it may be impossible to establish which error (or doctor) caused the patient's injury. It may also be that the compound effect of multiple successive errors ultimately led to the claimant's injuries.

See also:

Can I claim if an injury made a medical condition worse?

Beyond the ‘but for' test...

In cases where the ‘but for' test is inadequate, the court will consider whether the care a patient received ‘materially contributed' to their injuries. This approach enables the court to look at the overall situation, rather than individual components of the treatment.

In the case of Bailey v Ministry of Defence, Mrs. Bailey (the claimant) was admitted to hospital for a complex gallstone operation. After the operation, the claimant contracted severe pancreatitis and became very weak. Unable to clear her airways, she choked on her own vomit and suffered brain damage.

The question facing the court was; did the patient choke because of the defective care she received (a negligent act that the defendant admitted) or as a result of her pancreatitis (a non-negligent consequence of the surgery)?

On a straight ‘but for' test, the claim would fail. Mrs. Bailey's solicitor could not prove that the negligent surgery caused her injury, as her pancreatitis might have been responsible for the injury.

The court then considered the issue of material contribution. They accepted that the patient could have choked for two possible reasons, but did not feel the need to ascribe blame either way. In all likelihood, Mrs. Bailey's negligent care contributed to the choking incident, and this was enough to prove her claim.

In summing up, the Judge set out the test for causation:

• If the injury would have happened anyway, the claim will fail
• If the injury would not have happened ‘but for' negligence, the claim will succeed.
• If the claimant can show that the negligent actions contributed to the injury in more than a negligible way the claim will succeed, even if other conditions may also have aggravated the injury.

Have you experienced medical negligence?

If you have suffered an illness or injury as a result of a breach of duty by a medical professional, you may be able to make a medical negligence claim.

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Citations

Source: Bolam v Friern Hospital Management Committee

Source: Material contribution

Author:
Chris Salmon, Director

About the author

Chris Salmon is a co-founder and Director of Quittance Injury Claims. Chris has played key roles in the shaping and scaling of a number of legal services brands and is a regular commentator in the legal press.