Establishing Negligence In Clinical Negligence Cases

This article sets out what claimants have to prove to successfully establish a clinical negligence claim and receive a compensation award.

Duty of care

Doctors owe a duty of care to their patient. The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor.

The standard of care

What is the standard of care and what is considered reasonable in a particular case? Further, how can a claimant prove that the defendant doctor's care has failed to meet the requisite standard?

The claimant first needs to show that on the balance of probabilities, the defendant's alleged specific acts or omissions were a cause of or materially contributed to the injury or loss or may have caused deterioration in condition. They then have to prove that these acts or omissions were the cause of the injury or loss or may have caused deterioration in their condition that would not otherwise have occurred. Negligence is not actionable without proof of loss or injury arising from the negligent act or omission. The damage may be physical, mental or financial but it must meet all of the following criteria:

It must be caused by a breach of duty (causation), It must be a type of damage recognised by law, and It must come within the foreseeable area of risk created by the breach of duty. The damage will not be the subject of a compensation claim, even if directly caused by the breach of duty, if it is of a completely different type or caused in a completely unforeseeable way. Nor will a doctor be held negligent for their inability to treat a patient successfully.

The Bolam Test

The famous case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 concerned a patient who was suffering from depression and was voluntarily admitted to the defendant hospital to undergo electroconvulsive therapy (ECT). ECT was delivered without any muscle relaxant drugs and the patient was unrestrained apart from the presence of nursing staff to prevent him from falling off the bed. During the treatment, he sustained violent muscle spasms causing him to fracture both hips.

He pursued a claim, firstly on the ground that had he been warned of this risk he would not have undergone the treatment, and secondly on the ground that had he received the muscle relaxant drug his injuries would not have occurred. The defence maintained there was no requirement to explain the risk of treatment unless specifically asked to do so by the patient. It was held that a doctor was not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

The jury found for the defendant on both issues of consent and treatment. In doing so, the 'Bolam test' emerged as a legal benchmark, placing the burden of proof on claimants to demonstrate that no responsible body of professional opinion would have endorsed a particular course of action, be it the disclosure of risk or the method of treatment.

The case led to the following propositions about the standard of care: a doctor's duty is to exercise skill and care according to the ordinary and reasonable standards of those who practice in the relevant field of medicine.

It is recognised that medical opinion may differ. A practitioner who acts in...