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To make a medical negligence claim, you must first establish the existence of duty of care.
Duty of care is something a professional should exercise when carrying out their work, and you should expect it to apply to you, if this professional is offering you their services.
If the person providing the service to you fails in their duty of care, and you can prove you have suffered an injury as a consequence, you may then be eligible to make a claim under the law of negligence.
What is Duty of Care?
In whatever line of business a professional is in, they represent themselves as having above average skills or abilities.
It follows that you should then expect these professionals to exercise a reasonable amount of care in the work they carry out. This is their duty of care.
You have an expectation that this will happen, and if it does not, then the professional concerned has failed to exercise their duty of care towards you.
This applies to healthcare practitioners, such as:
• Healthcare assistants.
The law imposes a duty of care on healthcare practitioners in situations where it is reasonably foreseeable that the practitioner might cause harm to patients either through their actions, or by failing to act.
Duty of care exists where the healthcare practitioner has taken on some sort of responsibility for the care of the patient.
A practitioner must act in accordance with a responsible body of practitioners, providing a reasonable standard of care in line with their profession.
If they fail to carry out duties to these standards, then this may make them negligent.
If a patient suffers harm, the law will look at who has a duty of care to them, and whether there was negligence. By doing this, the law can attribute responsibility or liability for the harm the patient has suffered.
Generally, personal attributes such as level of experience should not influence expected standards of care – a newly qualified nurse, for example, should deliver care in the same way as someone who has years of experience performing the same tasks.
What is Medical Negligence?
Medical negligence occurs when your experience of care or treatment falls short of what you can reasonably expect, and this damages your health. This damage would not have happened to you otherwise.
You can claim for medical negligence if your treatment has fallen below a minimum standard of competence, with the result that you have suffered an injury.
You may also be able to act on behalf of someone else, if they have died as a result of medical negligence, or if they are unable to represent themselves – for example if they are a child, or have a mental disability.
However, there are certain conditions that must apply, for you to be able to make a claim for medical negligence.
As a claimant, you must prove:
• That the person you are claiming against owed you a duty of care
• That there was a breach in this duty of care
• That you suffered injury as a result.
Proof of negligence is essential. If you undergo treatment that is unsuccessful, or does not give you the results you expected, this does not automatically mean negligence has occurred.
You must prove that your treatment has fallen below acceptable reasonable standards of a competent medical professional.
Establishing proof in medical negligence involves causation.
What is Causation?
In legal terms, establishing causation means proving that there has been a breach in the duty of care.
Causation is often complex. One major reason is that it can involve hypothetical questions, such as:
What would have happened had there not been a breach of duty?
In many medical negligence cases, claimants were ill before they had treatment. Consequently, proving that negligence, rather than their condition before treatment, has resulted in injury, can be difficult.
The standard test for causation is but for:
But for the negligent medical treatment, the claimant’s injury would not have occurred.
The claimant must prove this on the balance of probabilities, that it is more than 50% likely that the injury was caused by medical negligence.
Where there are multiple factors involved, establishing causation can become more complicated. For example, if there are several possible causes for the claimant’s injury.
In these types of situation, establishing causation will require looking at material contribution.
In testing for material contribution, the claimant must demonstrate that:
• The negligence contributed to the actual damage or injury and did not just cause an increased risk of this happening
• The contribution of the negligence is material, meaning it is relevant and significant
• There is no alternative cause that could have completely caused the damage or injury.
The material contribution test is appropriate only in circumstances where there are potentially multiple causes of an injury.
Duty of care and medical negligence are closely linked. You cannot make a medical negligence claim without establishing that there was a duty of care, and that this duty of care has been breached.
But proving this can be complicated as you must establish causation. Therefore, the three essential elements for a claim to succeed are:
• Duty of care
• Breach of duty
Making a medical negligence claim requires expert legal support and guidance, to steer you through these complexities.
For more information about our services for supporting medical or clinical negligence claims, please call Wilson Browne Solicitors on 0800 088 6004, or complete our online contact form and we will be in touch as soon as possible.
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