The first step to cross in bringing a legal claim against a medical practitioner is to prove “breach of duty”. This means that you have to show that the medical care that you received fell below a reasonable standard.
How do you go about establishing that this is the case?
The law on this issue is fairly established. A doctor’s care will not be considered below standard if he can show that he acted in accordance with recognised practice. To do this he only needs to show that a responsible group of doctors in his area of medicine would have acted in the same way as he did. His care will be considered acceptable even if there are other groups of medics who would have acted differently to him. It is accepted that different doctors will at times have different opinions as to the appropriate course of treating a patient. The treatment is only negligent is no reasonable body of doctors would have treated the patient in this way.
A doctor who wishes to rely upon this principle must also be able to show that the practice which he and his colleagues followed stands up to logical analysis. In other words doctors must show that the practice they are following is not only acceptable to them and a group of other similar doctors, but also that it is a sensible way of working. Doctors are expected to weigh up the risks and benefits of different ways of working and cannot just say that they followed an accepted practice without being able to explain why it was a reasonable way of working.
How do you find out if the doctor treating you will be able to defend the allegations of negligence? It is necessary to obtain evidence from an independent medical practitioner in the same specialty and of the same level of expertise. This is usually done by obtaining the relevant medical records and asking for a written report on whether your care falls within an accepted practice. If the independent expert considers that you received treatment which fell below the standard of a reasonably competent doctor in the field and that there is no group of such doctors who would support such treatment then you are over the first hurdle towards proving a clinical negligence case.
The next hurdle is to prove causation. Once you have managed to get as far as showing that the medical care you received fell below standard then the next step is to prove “causation”. This is known as the “but for test”. The court requires you to show that but for the negligent treatment you would not have suffered any injury. This is often very difficult to prove as, of course, by definition people are in some way unwell to warrant the attention of a doctor in the first place.
The problem is best illustrated by an example. In a case dating back to the 1960’s a patient went to hospital complaining of vomiting after drinking tea, which unbeknown to him had been contaminated with arsenic. He was sent home from hospital without any treatment, and died shortly thereafter. The doctor was found to be at fault for sending him home without a proper examination, but the medical expert evidence showed that there was no treatment he could have been given and that he would have died anyway. There was therefore no case for medical negligence. Whilst therefore the doctor was at fault, there was no causational consequence to this and the claim failed.
You will need to prove your case on the ” balance of probabilities”. This means that you must show that the injury you have suffered occurred more likely than not as a result of below standard medical treatment. If you have established that your care fell below standard and that as a result you have suffered some harm or injury then you have a claim for clinical negligence.