Clinical negligence previously referred to as medical negligence can often appear a straight forward matter; however making a compensation claim for clinical negligence can often and unfortunately be a long and drawn out matter.
We put our trust into Doctors and nurses and rely on their expertise when diagnosing and treating us. When a mistake occurs or something happens that is unexpected in the first instance it would suggest there has been a lack of care and someone has been negligent. This is simply not the case.
Some individuals believe that if a medical professional makes a judgement that fails to deliver the desired results they are negligent, have failed in their duty to provide satisfactory care and in turn should be held accountable.
Whilst this can be true in some cases, it is not always the case and consequently any claim for compensation may be unsuccessful.
What defines Clinical Negligence?
At some point or another we will all make a mistake at work. We are only human after all. That said, there is a distinct difference between negligence and making a mistake.
Clinical negligence is a term used to explain medical accidents wherein a patient has sustained a serious injury or financial loss as a direct result and failure of the medical professionals looking after them to provide and uphold the duty of care owed to the patient.
Clinical negligence can include missed diagnosis, treatment that is below acceptable levels and standards, or simply an omission of care to the patient.
In order for a clinical negligence claim to be successful the person making the claim needs to show the medical professional, on the balance of probabilities has been negligent.
Essentially this means the claimant will be required to prove that the standard of care given to them was below a reasonably acceptable standard.
Reasonably acceptable is the standard laid down by other medical professionals in that field.
In order for a clinical negligence claim to be successful there needs to be four parts of a claim:
- Injury/Loss – An injury or loss has been suffered.
- Negligence – A breach of duty has occurred
- Duty of Care – The Defendant (professional) owed a duty of care to the Claimant (patient).
- Causation – As a result of the breach of duty injury and or loss was caused. Causation is the term used to evidence the direct link between the patient’s injury or loss and the medical professional’s clinical negligence. Liability is recognised when there is a breach in the duty of care owed to the patient, which has caused the injury or loss.
The Bolem Principle
Disputed clinical negligence cases are dependent on the view taken by the court for the standard of care provided by the medical professional, and if the care given by the medical professional was in line with the skill required by another medical professional. This forms the basis of the Bolam principle.
John Bolam was attending a psychiatric hospital for depression and was undergoing electroconvulsive treatment.
No restraints or relaxants were given to him and consequently he sustained fractures whilst having the treatment.
John Bolem argued in the case of Bolam v Friern Hospital Management committee (1957) that had he’d been given relaxants he would not have suffered fractures, and that he would not have gone ahead with the treatment if he had have been warned of the side effects
The Judge’s ruling was that ‘the professional must act in accordance with a practice which is accepted as proper by a responsible body of men schooled in the particular art’ and that this is so even if there is a body that takes a different view.
This meant, no negligence had taken place and that the professional doesn’t need to have the highest skill, but only that of an ordinary professional, therefore a professional is not negligent if it is proven that they have acted in accordance with what is expected of the ordinary professional.
It would not be deemed reasonable to expect the professional to be up to date with every piece of information, of new procedures and different methods of performing them, this would be deemed unreasonable.
There are of course on some occasions where the Judge has ruled over the ordinary standard when it has not been proven to be in the best interest of the patient, and there is insufficient evidence to validate putting the patient at risk.
The law does not allow for learning either; there are no exceptions for trainees. The trainee is to be judged at the same standard as his/her more experienced colleagues. It also states that deterring away from normal practice cannot be deemed negligent if it is in the interests of the public and medical progression, therefore it is justified.
The Bolithio Test
Application of the ‘Bolam Principle’ was amended in 1997 during the case of Bolithio v City & Hackney Heath Health Authority. It was argued by Lord Brown-Wilkinson that the boundaries of Bolam, stating that the court should not accept a defence argument as being ‘reasonable’ ‘respectable’ or ‘responsible’ without first assessing whether this opinion is susceptible to logical analysis. Therefore meaning that even though an ordinary professional would have acted in this way, was it logical for them to do so? If not then, negligence may be proven.
Clinical negligence claims are often ‘benchmarked’ against these two cases.
Claiming for Clinical Negligence
If you or someone you know believes they have suffered an injury unnecessarily and feel that it is the result of clinical negligence then you may be able to make a claim for compensation. Please contact us today if you have any questions to ask.
Our solicitors at Accident Claims Assistance have years of experience in dealing with clinical negligence cases and will handle every aspect of your claim on a ‘No Win No Fee’ basis which means making a claim for compensation won’t cost you a penny.