While the NHS delivers healthcare to the nation ethically and diligently, by and large, the law does recognise that there may be incidents where healthcare workers act in a negligent manner, or fail to act in a manner expected from someone in their particular field. Such negligent action, or failure to act adequately in the course of duty, can amount to medical negligence, also known as clinical negligence.
For most of us, healthcare is fortunately not a negative experience and we accept that the NHS and its healthcare workers across the board from dentists, therapists and nurses to general practitioners (GP’s) and consultants, strive to provide the best possible healthcare.
For the purpose of this article, we will refer to “doctors” throughout but do realise that clinical negligence can pertain to any healthcare workers in the NHS.
By virtue of his position alone, a doctor is bound to a duty of care and skill. Negligence arises where a doctor breaches this duty and, by doing so, causes harm or loss to the patient. A doctor is not guilty of negligence if he has acted in proper accordance with a practice which is accepted as proper for a doctor skilled in that particular area. In other words, if a doctor exercises care and skill, and acts in a way that is regarded as acceptable practice, he would not be acting negligently, even though a successful medical result cannot be guaranteed.
For example, a misdiagnosis does not automatically equate to clinical negligence. If in general medical opinion the doctor acted in a manner that was appropriate for a doctor in dealing with a particular set of circumstances, the doctor’s actions are unlikely to be regarded as negligent.
No doctor can guarantee a successful outcome. Medical science is not always exact and depends on several factors. It is not possible to know how one patient will react to a particular procedure, in comparison to another patient, or with regard to the administering of a type of drug.
Where a doctor veers from an accepted medical practice or procedure and thus acts without the duty and skill expected from the reasonable doctor his position, harming the patient in any way, he may be guilty of clinical negligence.
In order for there to be a possible action arising from clinical negligence there needs to be causation. Negligence alone is not enough. There needs to be a clear link between the doctor’s negligence and the injuries suffered by the patient as a result. The definite link between the negligent act and the resulting harm is referred to as causation.
It must be shown on a balance of probability that the doctor’s negligent actions (or negligent failure to act appropriately) resulted in the patient’s loss. In other words, it must be clear, in all likelihood, that the doctor’s actions caused the injury. The causation must be more likely than not.
We have seen that a doctor can be negligent in acting in a manner which is not acceptable for one in his position. Even if a doctor has not been guilty of negligence during, for example, an operation, he may be guilty of negligence for failing to warn the patient of all the possible risks of the operation.
There are three possible types of action that may arise out of a doctor’s negligent conduct and the circumstances of each individual case will determine what action is appropriate. Such action will include civil action, criminal action and administrative action.
The question has been raised among jurists whether the harmed patient may sue on the basis of a breached contract between doctor and patient. There seems to be a majority view that as far as NHS treatment specifically is concerned, there is no patient-doctor contract in the true sense of the word. The doctor’s obligation arises from a duty to the ethical principles of his profession and not out of a contractual agreement with the patient. We therefore need not explore the issue of contractual liability.
Where it is shown that a doctor has not shown the required duty of care and skill as required by someone in his position; where he has not foreseen damage resulting from his actions which he ought to have done, and where there is causation (a clear link between the negligent action and the patient’s injury or loss), there is cause of action arising from clinical negligence. The patient may sue the NHS for damages.
Damages are the amount paid by the defendant to the patient who has been directly disadvantaged by the negligent actions of the doctor during the course of his duties. Damages are not a punitive measure. In other words, the purpose of damages is not to punish the doctor but to compensate the patient. Damages are the law’s means of putting the patient back in the position he would have been in had the negligent act not taken place.
Of course, where the patient has suffered permanent damage, it is very difficult to decide how much the injury “is worth”. However, a tariff indicator has been drawn up and it is possible to check the compensation tariff range against the severity and type injury. Courts will consider within the tariff framework what compensation they consider fair and reasonable.
Factors which a court will take into consideration when deciding the precise amount of damages to be awarded to a patient include:
The kind of injury and the severity
The amount of pain and suffering which the patient has had to endure
Loss of amenity (loss of enjoyment and the ability to engage in activities which were enjoyed prior to the injury suffered)
Expenses incurred (medical costs, legal costs etc)
Loss of earnings
Where a doctor has been guilty of gross negligence or has perpetrated a crime through malicious intent to harm or assault a patient, this may result in a criminal prosecution.
It is extremely rare for doctors in their professional capacity to face criminal prosecution. A possible scenario where a doctor may face criminal prosecution is where, for example, a doctor foresaw grave harm to the patient and committed gross negligence by continuing with the procedure without the necessary consent, or caused deliberate harm. Such circumstances are rare and require no further attention here.
Where you do not have a cause of action arising out clinical negligence but have a complaint regarding poor or unprofessional service, there are NHS complaints procedures in place to assist you in bringing your grievance to light. It is often best to compile a written complaint and send this along with any evidence you may have directly to the relevant NHS entity, or to your local Primary Care Trust (PCT).
If the matter is not dealt with to your satisfaction, you can direct your complaint to the Health Service Ombudsman.
See the more comprehensive article entitled The NHS complaints procedure
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