Proving breach of duty in a clinical negligence claim

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To succeed in a clinical negligence claim, claimants must show that the doctor's actions caused or contributed to the injury in a material way.

All medical professionals must exercise reasonable skill when performing their duties in order to keep their patients safe from harm. Legally, this is known as a duty of care. A doctor breaches their duty of care if they do not meet acceptable care standards.

However, a doctor who breaches their duty of care is not automatically liable for their patient's injuries. The claimant must also show that the doctor's action (or inaction) caused the injury and not the patient's underlying illness.

Did the doctor provide an acceptable standard of care?

The test to establish breach of duty is set out in Bolam v Friern Hospital Management Committee. Under the Bolam test, the medical professional must show that they provided the standard of care that a reasonable body of medical professionals in the same field would regard as acceptable.

A medical professional who follows the usual course of treatment is unlikely to fail the Bolam test, even if the treatment is later discredited.

Did the doctor's negligence cause the injuries?

The second part of the test is to establish that the doctor's actions caused the injury (causation). This is sometimes known as the ‘but for' test - but for the medical professional's actions, the injury would not have occurred.

The ‘but for' test runs into problems in some circumstances. For example, if a patient receives a succession of poor care decisions, it may be impossible to prove that any one error caused the patient's injury. It is only when multiple errors are compounded that the patient suffers harm.

Beyond the ‘but for' test

Where the ‘but for' test is inadequate, the Court will assess whether the care a patient received ‘materially contributed' to his or her injuries. This allows the Court to look at the overall situation rather than individual components of the treatment.

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

The question before the Court was, did the patient choke because of the defective care she received (a negligent act that the defendant admitted) or because of the pancreatitis (a non-negligent consequence of the surgery)? On a straight ‘but for' test, the claim would fail. Mrs Bailey could not prove with certainty that the negligent surgery caused her injury, because her pancreatitis might also have been to blame.

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' the 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 or clinical 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 pursue a claim for compensation.

How can Quittance help?

Your solicitor will fight for the best possible compensation settlement for you, and the highly-experienced panel of solicitors have an excellent track record of winning injury claims.

If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.

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Howard Willis, Personal injury solicitor

Howard Willis, Personal injury solicitor