Negligence is the breach of a legal duty of care owed to one person by another which results in damage being caused to that person. Clinical negligence (often called medical negligence) is concerned with claims against doctors and other healthcare professionals and their employers. In order to succeed in a claim for negligence, the claimant needs to prove that:
- The doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury.
- There was a breach of that duty to take care.
- That breach of duty has caused harm to the claimant.
- Damage or other losses have resulted from that harm.
- These four elements will be analysed in turn.
Duty of care
Breach of duty
It is necessary to show that whatever the doctor did or did not do fell below the standard of a reasonably competent doctor in that particular field of medicine. The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to meet the standard of a reasonable body of other practitioners also skilled in that field. This is known as the “Bolam test”.
In addition to proving that the doctor has failed to meet the relevant standard of care, the claimant also has to establish that this failure either directly caused the injuries alleged or significantly contributed to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong but this failure cannot be shown to have caused the patient’s injuries.
A claimant who is able to prove breach of duty and causation then needs to establish that he or she has suffered damage for which a claim can be made. Damage includes physical injury and psychiatric injury, as well as financial loss such as loss of earnings and future healthcare provision. Psychiatric injury is the legal term used by the court. It must be a recognised psychiatric injury, such as post-traumatic stress disorder (nervous shock), anxiety disorder or adjustment disorder. Grief or emotional upset are not injuries for which damages can be awarded.
Burden of proof
The burden of proving negligence is on the claimant
Limitation of Actions: time limits for bringing a clinical negligence claim
The time limit for bringing legal proceedings for clinical negligence resulting in physical or psychiatric injury is three years, although this can be extended under certain exceptional circumstances. The time runs from the date of the negligence or from the date that the injured person has knowledge of certain factors which make up the claim. These are set out in the Limitation Act 1980. The three-year limit does not apply in specific circumstances. For children, time starts to run from their eighteenth birthday. For those unable to administer their affairs by reason of mental disorder or lack of capacity, time does not begin to run until they regain capacity. In addition, the court has a general discretion to allow a claim to proceed even if the time limit has expired, although it will only do this if there are good reasons for the delay.
Liability of hospitals and doctors
Doctors and other healthcare professionals may be liable directly for their own negligent treatment. In addition, their employers, usually NHS Trusts, Clinical Commissioning Groups or private hospitals, may be “vicariously” liable for the negligence of their staff.
A GP is liable for his or her own acts, for the acts of his or her employees and, arguably, for anyone else s/he employs to look after patients such as nurses. The General Medical Council requires that all doctors have adequate insurance cover.
If the negligent healthcare professional was a health service employee, such as a hospital doctor, then it would be the Health Trust that would be liable. If a claim is successful it will be the hospital that pays the damages. Doctors, nurses and other health care staff in the NHS are covered by the NHS Indemnity, which means their employer is responsible for any clinical negligence claims
Hospitals may also be directly liable where, for example, they have failed to adequately supervise or train their doctors and nurses or where hygiene standards have not been maintained properly.
A clinic or private hospital will take out its own insurance. It will employ staff such as doctors, nurses and administrative staff. The medical staff using the facilities of the clinic will be independent contractors, and therefore, any claim should be against them as individuals. In almost all cases it will be the individual doctor that is sued. As stated above, insurance will be required by the relevant professional organisation. Before legal proceedings are started a letter of claim setting out the allegations of negligence and the damages suffered needs to be sent to the potential defendants in accordance with the court procedure rules.
The Complaints Procedure
There are slight differences in the complaints procedure depending upon whether the medical malpractice you suffered took place via the NHS or a private practice. In both cases, your legal right to seek compensation is the same, but the NHS has a rigid complaints procedure in place, whereas private facilities may vary from place to place. Looking into the facts of your case and intricacies involved therein the Solicitor expertising in medical negligence shall guide you in the entire claim procedure process.