Medical Negligence Claims – What You Should Know

Posted By admin - 10th May 2012

Pursuing a claim for medical negligence is often a long and complex process. When considering whether to pursue a claim for compensation, it is important to remember that negligence at law is not the same thing as negligence in everyday language. In everyday language, the word negligence is often used to explain acts of extreme carelessness. However, not every mistake or careless act by a health professional can be considered negligent at law.

In order to prove negligence at law three things are needed:

1)    Injury
2)    Breach of Duty
3)    Causation

All three of these elements must be present in order for a claim for clinical negligence to be successful.

Injury

The first thing that must be shown is that the individual making the claim has suffered an ‘injury’.

Breach of Duty

Once the injury has been established, it is necessary to consider whether the doctor, or other health professional, breached their duty of care.

Breach of duty is unacceptable care at law. To be considered unacceptable care at law, it must be care that no responsible body of doctors (acting in the same circumstances) would have provided. In order to determine whether the care provided was of an unacceptable standard, it is necessary to obtain a report from an independent expert practicing in the same area as the doctor or health professional in question.

It is important to note that there is no precise definition of a ‘responsible body of medical opinion’. A very small group of doctors that believe that things should be done in a certain way might amount to a responsible body of medical opinion.

It is possible therefore that there may be more than one responsible body of medical opinion on any particular issue. In this scenario, the medical evidence would be presented to a judge who would make the final decision.

Causation

The final thing that must be shown is that the unacceptable care caused the injury. Put simply, you must show that ‘but for’ the breach of duty the injury would not have occurred. Proving causation can be difficult as it is necessary to establish whether the injury would have occurred anyway, or whether it is a direct result of the unacceptable care.

If you believe that you may have a claim for clinical negligence, please do not hesitate to contact the team at Moosa-Duke today. Our solicitors possess the expertise and experience to help ensure that you fully understand the process and your legal rights.