Medical negligence is the term used to describe all claims against doctors, other healthcare professional and their employers. So the majority of NHS claims would be made under the term medical negligence. If successful the claimant will win compensation though how much will vary according to the circumstances of the case.
In a claim of this kind the award of damages is the only one that can be made; the court cannot impose conditions on the hospital to change its working practices or improve its standards although this may be the result of a successful claim.
The term negligence means the breach of a legal duty of care owed by one person to another and which leads to damage of some kind being caused to that other person. Regarding medical negligence, there are four strands to a claim, all of which have to be satisfied to give the claimant a chance of being successful.
The claimant has to prove that the doctor or other medical professional owed a duty of care to the claimant.
- There has to have been a breach of that duty to take care
- The breach must have caused harm to that claimant
- Damage must have resulted from that harm.
Generally, in medical negligence claims there is little problem in proving the first strand, that there is a duty of care. The doctor/patient relationship is one presumed by the courts to be one where a duty of care exists and it would also apply to other professionals in the same field such as surgeons and ambulance staff.
Regarding a breach of that duty, this is more complicated and here it is necessary to show that the doctor or other medical professional did or didn't do something which fell below the standard required of a reasonably competent doctor in that particular field. This therefore is quite a difficult thing to prove, not only that the doctor made a mistake but that they fell below the standard required of a reasonably competent doctor.
Also difficult to establish can be causation, the requirement that the doctor's breach of duty directly caused the injuries sustained by the claimant or significantly contributed to them. It can often be very difficult to directly link the breach of duty to the damage caused and unless the claimant can prove that link they will not receive any compensation.
In terms of damage, this can include
- Physical injury
- Psychiatric injury
- Any financial loss suffered such as a loss of earnings.
However, not all losses can be recovered, for instance damages which are ruled to be not reasonably foreseeable will not be allowed. So, the damage to be claimed for must flow directly from the breach of duty that took place.
