Clinical Negligence Claims

Clinical Negligence Claims

The team at JS Miller Solicitors have been successful in achieving clinical negligence claims settlements in many cases where other solicitors have given up. Clinical negligence claims are notoriously more complex and challenging due to a number of legal principles established to protect the medical professional from litigation.

Unlike mainstream personal injury claims, a claim for medical negligence requires the claimant to overcome a number of additional hurdles in proving that an injury or illness was caused by a medical professional’s negligence. This is so as to protect the medical professional from claims for injuries or illnesses that could not be avoided and to ensure that life-saving treatment can be administered without fear of repercussions through the courts.

A number of legal tests are considered to decide if liability for a clinical negligence claim should be attached to a medical professional:

Standard Test for Breach of Duty – Has the person met the standard of a reasonable person e.g. has a driver met the standard of an ordinary reasonable driver.

The Standard Test is unsuitable for persons required to have skills, abilities or knowledge beyond what would be found in an ordinary reasonable person eg a doctor.

The Bolam Test (Bolam v Friern Hospital Management Committee [1957]) – Is the test applied to people acting as expert clinicians (and more broadly other professionals such as architects, accountants and lawyers). In this case McNair J said.

“I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong.”

The Burden of Proof – The evidence produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed, there was a breach of that duty and the breach caused the injury.

It is generally assumed in the absence of contrary evidence that a patient will follow recommendations made by their clinicians. Further, it is common for the lay witness evidence to be preferred to that of the doctor. The reason for this is that a doctor may speak to tens of patients each day and it is likely that evidence will only be gathered months or years later. It is likely that the alleged negligent event will have been more novel and memorable to the patient than the doctor. For that reason contemporaneous notes will be essential to any defence.

Omissions – Clinicians will not be protected by taking no action. Once a duty of care has been established a failure to treat or treat properly can form the basis of a clinical negligence claim. It is not relevant whether the failure to treat is a conscious decision. Loss of a chance of cure is not generally recoverable.

Misstatements –  There is a rule of reasonable reliance (Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465) where you may be held liable for damages arising out of advice even where no action is taken.

“Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.”

This liability arises just as readily for advice across a restaurant table as given in a clinic.

Outside the Clinical Setting

As a bystander – There is no duty to assist under English civil law unless there is a duty of care. There is no additional duty for medical professional other than that under their code of conduct. However, a code of conduct does not create a duty of care for the purposes of a civil claim and any failure to act will not create a cause of action for a third party.  A duty of care will exist automatically if there is a special relationship such as a teacher acting in loco parentis.Where a special relationship does not exist the court will consider whether it should impute one. In Stovin v Wise, Lord Nicholls refers to these people (who do not help) as “callous bystanders” and later that, “something more is required than being a bystander. There must be an additional reason why it is fair and reasonable that one person should be regarded as his brother’s keeper and have legal obligations in that regard”.

The additional reasons are considered to be:

(a) control;
(b) assumption of responsibility;
(c) creation (or adoption) of risks.

As a rescuer – While there is no duty of care that compels a party to “come to the rescue” there is a duty of care for those that choose to do so. This duty creates a liability for positive actions which make the situation worse. There is no liability for actions which fail to improve the situation.

This brings us back to breach of duty. The standard for breach of duty is a reasonable man. If you assist as a rescuer you will be judged by the criteria of a reasonable man rather than as a medical professional under the Bolam Test. This is obviously a lower standard.

Liability as an expert witness – For the past 400 years expert witnesses have had immunity from suit for those actions taken as an expert witness to the court. This immunity was removed in 2011 in the case of Jones v Kaney. As this is a recent decision the limits of this liability have not been clearly defined. However, it is worth noting that all expert witnesses, regardless of who is the instructing party, are the court’s witness and, accordingly, there are good arguments that either the Claimant or Defendant could claim if the expert’s evidence lead to a loss for them.

Limitation of Actions

Legal proceedings must be brought within certain time periods which are set by limitation.

The limitation period for bringing legal proceedings for clinical negligence claims resulting in physical or psychiatric injury is three years running from either date of the negligence or from the date that the injured person has knowledge of the cause of his injury, whichever is later.

Exceptions include:

  • Children – Time starts to run from their eighteenth birthday.
  • Persons unable to administer their affairs by reason of mental disorder – Time starts to run when they regain capacity.
  • 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, A v Hoare [2008] UKHL 6.

If you have a clinical negligence claims issue requiring the input of a fearless team of lawyers who will fight to achieve justice on your behalf then look no further!

So, What’s Next?

We have a team of caring professional personal injury solicitors ready to speak to you.

Most cases can be conducted entirely online and over the phone. We can also arrange office, home or hospital visits for clients all over the UK. Subject to level of injury suffered.

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