Clinical negligence - overviewThe duty of care

The claimant will not have any difficulty proving the doctors or nurses who provided the treatment owed a duty of care. In clinical negligence claims this is the simplest task. Once the doctor-patient relationship is established the duty follows.

Breach of duty

A medical, dental, nursing or other treating professional will not be negligent unless it can be shown that the treatment provided fell below a reasonable standard of care. That standard is set by the profession, not by lawyers or Parliament. The question will almost always be determined by expert evidence on whether the actions taken by the clinician are supported by a reasonable body of medical opinion: the Bolam test (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118).

Causation

Causation is generally the most complex issue in clinical negligence claims. It is usually determined by expert medical evidence (though factual causation, as in all personal injury litigation, is sometimes determined by lay evidence). The experts consider whether, on the balance of probabilities, the patient would have suffered the injury but for the negligence. However, loss of a chance is is difficult to establish..

Failure to diagnose or to treat cases are common in clinical negligence. The failure to treat will often be a conscious decision and assessing what would have happened if treatment had been provided can be a difficult task. Loss of a chance of cure cases have created some complicated decisions in the House of Lords over the past 20 years.

Consent to treatment

Consent is the process by which a patient allows a clinician physically to invade their body. Proper consent requires the patient to be informed of the benefits and the risks of the treatment proposed and of other treatment options available. An action in negligence will arise where the failure to warn could not be supported by a responsible body of medical opinion. This, again, is a question of expert evidence.

The Mental Capacity Act 2005 governs consent. The Family Law Reform Act 1969 and the Children Act 1989 provide guidelines for consent of children.

Defences

The maxim res ipsa loquitur is rarely relevant in clinical negligence claims: see Ratcliffe v Plymouth and Torbay Health Authority (1998) 42 BMLR 64 and Thomas v Curley [2011] EWHC 2103 (QB).

Generally, the defences in clinical negligence claims are a denial of breach of duty or causation.

Contributory negligence rarely arises in clinical negligence claims unless the patient has failed to conform with suggested treatment.

The defence of volenti non fit injuria does not tend to arise in clinical negligence claims.

The duty to mitigate applies in clinical negligence as in any personal injury case. In the medical field recommendations of treatment to rectify or improve an injury may be relevant.

Damages for failed sterilisation

Parents cannot recover damages for the cost of raising a healthy child born as a result of clinical negligence (failed sterilisation cases). However, where a disabled child is born damages can be awarded for the extra costs of bringing up the child. In all cases an award can be made to recognise the wrong done.

Contract

With private treatment there is likely to be a duty owed in contract as well as tort and in the event of injury, but in the absence of clear warranties, contractual duties for private treatment are likely to be similar, if not identical, to those arising in tort.

Duties to third parties are unlikely to be imposed, the main reason being that a clinician’s exclusive duty and concern must always be the welfare of the patient.

Complaints

It is usual in clinical negligence actions for the process to start with a complaint to the health service provider, most commonly the NHS trust responsible for the hospital providing the care. The trust is vicariously liable for the treatment provided by its staff.

There is now a single complaints system for NHS hospitals and primary care trusts.

Claimants should be aware that using the NHS procedure will not provide compensation. However, in appropriate cases an apology may be provided, which can often be the only response a complainant may require or want.

Where the outcome of the investigation is inappropriate a complaint can be made to the Health Service Ombudsman.

An alternative or additional procedure is that afforded by the regulatory body responsible for the clinician’s professional registration (General Medical Council, General Dental Council or Nursing and Midwifery Council). Again, such a complaint will not provide financial compensation and the primary concern is whether the fitness to practise of the clinician is impaired.