Clinical Negligence

The Law

For your claim in negligence to succeed you must satisfy the court on three grounds:

1. That the Defendant owed you a duty of care
2. That there was a breach of that duty, and
3. That the breach directly caused or materially contributed to the injury or damage suffered.

Duty of Care

If you have received treatment under the NHS or private medical treatment then the hospital has a duty of care to look after you and this ground is made out.

Breach of Duty

This is more difficult. In cases involving hospital or clinical staff, the law recognises that there are often different opinions or approaches in medicine or health areas.

The fact that two doctors would treat the same patient differently does not necessarily mean that one is negligent.

If a particular method of investigation and/or treatment is recognised as being undertaken by a responsible body of doctors, even if a minority, it will not be actionable. It has to be sub-standard treatment to be a breach of duty.

Causation

Even where breach of duty is established, it must have led to the injuries suffered by you, if not, the claim will fail.

In one famous case a patient attended a hospital suffering from arsenic poisoning. The poisoning was not diagnosed and the patient was discharged and subsequently died. The evidence was that the patient would have died anyway from the arsenic even if diagnosed so the claim failed.

The damage suffered, death, was caused not by the hospital's negligence but because the patient had taken arsenic.

The damage must therefore be related to the breach of duty.