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Clinical Negligence – The Duty of Care

Who is subject to this?

Clinical (also called “medical”) negligence applies to the actions of all sorts of medical people: nurses, midwives, doctors, dentists, therapists, chemists, opticians, or any other healthcare service provider.

As soon as a doctor, nurse (or other clinician) has accepted a responsibility to provide medical care or treatment to a patient, from that moment on he owes a legally enforceable duty of care to him/her.

That duty of care covers both every action taken by the clinician and every omission to act.

It is not necessary for there to be any form of legal contract between patient and clinician e.g. when the former pays the latter privately to do a “nose job”, for example. The very fact that a nurse or doctor is professing to have a particular skill, is consulted by the (unskilled) person, and uses his/her skill to care for/treat the patient is sufficient. This is why a clinician employed by the NHS owes that duty of care to, for example, people using the hospital in which he/she works; alternatively why a GP owes the same duty to his/her patients.

What is negligence?

Negligence is, at its simplest, the failure to take reasonable care to avoid harming another or unreasonably omitting to do something with the same outcome.

This definition assumes an understanding of what is “reasonable care”.

In the context of a straightforward road accident, it is patently unreasonable to drive into the rear of another’s car and an ordinary member of the public will have little difficulty in recognizing this as negligence.

In clinical negligence terms, however, the law is a little more sophisticated and thus trickier to understand – .

Standard and burden of proof

a) Standard of proof: In order for a claim to be successful, the person bringing the claim (“Claimant”) is required to convince the Court that his/her case is more likely than not to be true. Solicitors call this the ‘balance of probabilities’.

b) Burden of proof: the onus of proving the claim falls entirely on the Claimant; there is no such burden on the Defendant, who does not need to disprove anything.

What is “clinical negligence”?

In fact, the fundamental law has hardly changed for well over 50 years.

To turn the definition round:-

A clinician is “not guilty of negligence if he has acted in accordance with a practice [rightly] accepted as proper by a responsible body” of clinicians who are skilled in that particular part of medicine or medical expertise i.e. merely because some equally skilled clinicians would have done differently would not make a particular act (or omission) negligent.

[Incidentally, as an aside to readers, the above definition is equally applicable to the acts or omissions of any person who holds himself out as having a particular skill to a person who he knows will, and does, then relies upon it.]

The judgment as to what is reasonable is made by clinicians in the same field as he/she who is the subject of the complaint or claim i.e. an orthopaedic surgeon’s acts would be analysed by other orthopaedic surgeons.

Furthermore, the standard to be applied is that at the time of the alleged negligence. Hence, if medical science or practice at a later date may have advanced since the time of the act or omission, such advances should be ignored and those judging the person in the spotlight must do so as if they were in the same position as him/her on the particular day that the act or omission took place.

Having applied the above tests, if, as a consequence, the care or treatment a patient has received is not rightly supported as reasonable by a responsible body of medical experts in the appropriate field, a claim for compensation can justifiably be made.

In an exceptional case, even if medical opinion appears to support the act or omission complained about, the Court can nevertheless determine that such support is illogical and substitute a finding in favour of the Claimant. This occurs very rarely indeed, however.

What can Lloyd Green, solicitors do to help?

We are always at hand on the telephone to listen to you, whether you think that the duty of care owed to you has been broken or not. Tell us your story and let us decide.

Ordinarily an injured person has three years to commence a claim at Court but children have until their 21st birthday and there are other complicated rules which may extend the period in exceptional circumstances.

If we advise you to make a claim, we can assure you of our professionalism and sensitivity at all times. We will progress your claim as swiftly as possible and ensure that, if compensation is what you want and are entitled to receive, you will be paid as much as the law permits.

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