What is Clinical Negligence?
Clinical negligence (also known as medical negligence) occurs when a doctor or other health professional breaches their duty of care to the patient, resulting in physical and/or mental harm and suffering. Clinical negligence can be serious, and sometimes catastrophic for the victim.
At a time when the NHS is under huge financial pressure, clinical negligence claims are costing the NHS billions of pounds. Whilst the vast majority of NHS doctors and other health professionals maintain a consistently high standard of patient care, some level of human error is inevitable. However, where there is negligence that causes harm, the law steps in to enable the victim to claim compensation.
For the purposes of this article, we refer to ‘health professionals’ which encompasses doctors (including GPs, consultants and other hospital doctors), nurses, physiotherapists, and the like.
Proving clinical negligence
Clinical negligence arises when a health professional breaches their duty of care to an individual by failing to act in a manner expected from someone similar in their particular field, directly resulting in harm or loss to that individual.
Duty of care
All health professionals are under a legal duty of care to exercise their professional skills with reasonable care. However, it must be proved that this duty of care has been breached in order for a clinical negligence claim to succeed.
Breach of duty
The claimant must be able to demonstrate that they did not receive the standard of care they would have expected to receive from a reasonably competent, skilled specialist in that area. They must prove that the care they received in reality fell below a reasonable standard.
This can be wide ranging. For instance, a doctor may breach his or her duty by failing to inform the patient of the risks of a planned procedure which then goes ahead. If the claimant suffers harm as a result of the procedure – a successful clinical negligence claim could follow on the basis that ‘informed consent’ was not given. Had the risks been explained beforehand – a claim would be unlikely to succeed.
If the practice complained of is generally accepted as normal practice by other, similar health professionals, a claim is unlikely to succeed. Other factors to note include the fact that a misdiagnosis does not necessarily equate to clinical negligence; no doctor can guarantee a successful outcome; medicine is not an exact science; and individuals can show varying physiological reactions to drugs and procedures. In other words, when things go wrong, it does not necessarily mean a health professional was negligent.
However, where a health professional deviates from accepted practice or procedure, and does not exercise the duty of care and skill expected from a reasonable professional in the same position, clinical negligence may result.
In any compensation claim, the claimant must have suffered harm or loss as a direct result of a breach of duty of care. In clinical negligence claims, the claimant must show that the breach of duty, ie the negligence complained of, caused the physical and/or mental injuries. This is known, in law, as ‘causation’: a clear link must be established between the negligence and the injuries suffered by the patient.
It must be shown, on a balance of probability (ie more likely than not) that the negligence on the part of the health professional resulted in the patient’s injuries. Medical evidence, including expert medical reports will be required for a claimant to prove their claim.
Taking legal action
Where an individual believes they have suffered physical and or mental harm as a result of the negligence of an NHS doctor or other health professional, they can make a formal civil claim for compensation. The compensation claim will be made against the NHS trust concerned (the defendant in the case). The NHS trust may admit liability and agree to settle the claim, avoiding the need to go to a court hearing. In other cases, the NHS trust may admit liability but the level of damages cannot be agreed – in which case, the court may have to rule on the appropriate amount of compensation. A few cases, where liability is not accepted, will go to court.
Compensation for personal injuries are categorised as ‘general damages’ (an amount to compensate you for your pain, suffering and loss of amenity, and consequential loss of future earnings); and ‘special damages’ to compensate you for any financial losses that follow as a result of your injuries.
The more serious the injury, the more general damages you will receive. In the case of catastrophic injuries, for instance, where the claimant has suffered permanent damage, it is very difficult assess the ‘value’ of the injury.
There is no definitive tariff for valuing a claim, but there are useful judicial guidelines (and, of course, previous awards) that assist. The courts will assess the amount of general damages they consider fair and reasonable within the guidelines, and will take into account various factors including:
- 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)
- Loss of earnings (including loss of future earnings)
In addition to a compensation claim, potential criminal prosecutions could follow where the health professional concerned was guilty of gross negligence; or has perpetrated a crime through malicious intent to harm or assault a patient. In a recent high profile case, for instance, an optometrist was convicted of manslaughter after an 8-year-old boy died following a routine eye test – the optometrist failed to spot a life-threatening medical condition.
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