What is Medical Negligence?
Firstly there must have been a breach of duty or “fault” in laymen’s terms. You will appreciate that there are inherent risks in virtually any kind of treatment, and that even the best performed procedure can sometimes result in an adverse outcome.
The fact that you are damaged or injured is not in itself evidence of any breach of duty.
Secondly, that breach must have caused the damage, rather than some other cause. It is for you to prove causation of loss on a balance of probabilities which is frequently difficult because of the uncertainties of medical science. It is rare for there to be no issue on causation in medical negligence cases even where the issue of “fault” is straightforward.
In order to prove breach of duty, we need to establish that a doctor followed a clinical practice that is not supported by any responsible body of medical opinion, or, if it is so supported, that clinical practice does not stand up to analysis and was unreasonable in the light of medical knowledge at the time.
In practice, it will be difficult to prove negligence under the first limb if the defendant doctor can produce a reasonably qualified doctor to support the treatment that was given, or can refer to a leading textbook, and the doctor may be able to successfully defend the claim. The vital point to appreciate is that it is not sufficient merely for us to be able to show that many other doctors would have behaved in a different manner and even minority medical opinion can be used to justify the conduct of a practitioner as being non-negligent.
If we cannot establish breach of duty under the first limb of the test, we may be able to establish it under the second limb. Under this limb it is not enough for a defendant to call a number of doctors to say what was done or not done was in accordance with accepted clinical practice. It is necessary for the Judge to consider the evidence and decide whether the clinical practice puts the patient unnecessarily at risk.
It is well known that medical negligence cases are difficult. The first hurdle we must overcome is finding a suitably qualified expert who is prepared to stand up in court and say that another doctor was in breach of duty.
Even if we can satisfy this burden of proof, we shall still need to prove that either some of your injuries or some unnecessary pain and suffering you have suffered, were caused by the act or omissions of the doctor. We make this point because it is possible that although you did not receive the correct treatment, this would not have made any difference to either your injuries or the pain and suffering you have suffered. Again we will need a medical expert to prove causation.
Some examples of medical negligence may include:
- Failing to diagnose your condition or making the wrong diagnosis.
- Making a mistake during a procedure or operation.
- Giving the wrong drug.
- Failing to obtain consent to treatment.
- Failing to warn about the risks of a particular treatment.