Reasons to choose Wilson Browne
Gross medical negligence is different to ordinary negligence. It involves more than carelessness or failure to act.
Proving gross negligence requires proving that the defendant’s behaviour was wilful and carried out with disregard for the health and safety of others. This is conduct that is likely to cause foreseeable harm.
But does this mean that gross negligence requires intent?
What is Gross Negligence?
Gross negligence is a common law offence.
In gross negligence, the defendant’s behaviour has to be so bad that it amounts to a criminal act or omission. It can result not just in injury, but death. This is gross negligence manslaughter.
A 1994 House of Lords ruling, known as the Adomako Test, sets out the definition of gross negligence manslaughter:
- A death occurs as a result of a grossly negligent act
- There must be a duty of care
- There must have been a breach of this duty of care
- The breach caused or significantly contributed to the death
- The breach can be characterised as gross negligence, and therefore a crime
An example gross negligence medical malpractice would be if a doctor prescribed a drug to a patient which their medical records stated clearly that they were allergic to.
Any medical professional can commit the offence of gross negligence involving death following medical care or treatment. This includes doctors, nurses, paramedics and pharmacists.
How to Prove Gross Negligence
Some elements of gross negligence essential for supporting a claim are the same as for ordinary negligence in personal injury cases:
- Duty of care
- Breach of duty
But in addition, the courts will consider:
- Grossness – whether sufficient evidence exists to support the degree of negligence for the offence
- Serious and obvious risk of death – at the time of the breach of duty, would a reasonable person undertaking the role of the defendant have foreseen an obvious risk of death, not just a risk of injury or serious injury?
Does Proof of Gross Negligence Require Intent?
The five elements that must be in place to prosecute someone for gross medical negligence do not explicitly include the intention to do harm.
Gross negligence can arise from extreme carelessness or disregard towards a claimant.
The legal focus is on the act of negligence itself, rather than the person committing it. The prosecution does not need to prove that the defendant had foresight of the obvious and serious risk of death. But they must prove an extraordinary degree of negligence for it to be gross negligence.