How Hard is it to Prove Medical Negligence?

In a medical negligence claim, the burden of proof is on the claimant, and because of the circumstances in many cases, proving medical negligence can be difficult.

You must prove that:

• The standard of care you received fell below the professional standard you should expect from a competent medical professional, and
• You have suffered a physical or mental injury as a result of this negligent action.

The second of these things is known as causation, and it is often hard to establish.

Has Negligence Occurred?

Proving negligence involves a three-part test.

First, a duty of care must exist. This is the expectation that a professional in their field will exercise a reasonable amount of care when carrying out their work.

Legally, healthcare practitioners have a duty of care to their patients, in situations where it is reasonably foreseeable that they could cause harm to patients by either:

• Acting carelessly, or
• Failing to act.

Medical duty of care involves the special relationship between the healthcare practitioner – doctor, nurse, midwife, healthcare assistant – and their patient. When someone is admitted to hospital, for example, this creates a duty of care relationship.

The practitioner has taken on responsibility for the care of the patient.

If a doctor or other healthcare practitioner fails to meet reasonable standards of care, then this may mean they have been negligent.

This is the second part of the test: has there been a breach in the duty of care?

For a breach to occur, the treatment of the patient must have failed to meet an appropriate standard. In a medical context, the law interprets this as a standard of comparable professional practice.

To establish that a breach has occurred, the claimant must demonstrate that no reasonable doctor acting in the same circumstances would have acted in this way. The alleged negligent practice must be compared with how a healthcare practitioner’s peers practice.

The third part of the test is proving that the claimant has suffered injury as a direct result of the breach in duty of care.

This has to be legally recognised harm, and it hinges on establishing causation.

Why is Causation Important?

You must establish causation to prove that there has been a breach in the duty of care.

Establishing causation is often complex because it relies on hypothetical questions as much as physical evidence.

A key question is: what would have happened if there had not been a breach of duty?

In many cases, the claimant is already ill, before having any treatment. Therefore, a medical negligence claim will depend on them proving that their injury would not have happened otherwise.

This is why the standard test for causation is but for:

But for the negligent treatment, the claimant would not have suffered their injury.

To pass this test, the claimant must prove negligence on the balance of probabilities. This means that there is more than a 50% likelihood that the breach in duty caused the injury.

But there may be further obstacles to establishing causation where there are multiple factors involved, such as several possible causes for the claimant’s injury.

However challenging it is, establishing causation is central to proving a medical negligence case.

How do You Establish Causation?

One approach to establishing causation is to test for material contribution. This can apply in cases where there are multiple potential causes for the claimant’s injury. These causes may be negligent and non-negligent.

To apply material contribution, the claimant must show that:

• The negligent act contributed to the actual injury and didn’t just increase the risk of the injury occurring
• The contribution of the negligence is material – it’s relevant and significant
• No alternative cause could have caused the injury entirely on its own.

The success of a medical negligence claim can rest entirely on the medical evidence an independent expert provides. This evidence will determine whether or not you can establish causation and prove your claim.

How Difficult are Medical Negligence Claims?

Compared to personal injury claims, medical negligence claims can be harder to prove.

The medical evidence you require to prove your claim is likely to be extensive and may cover various medical disciplines. Reviewing these records can take time, especially as the claimant will probably have been receiving treatment for some time before the negligence is alleged to have occurred.

It can also be difficult to identify the correct defendant if the claimant has received treatment from several doctors.

Errors in judgement do not automatically count as breaches in duty of care. They only apply in circumstances where the healthcare practitioner has not acted with a level of care expected from a reasonably competent professional. However, there are no concessions for a lack of relevant experience: a doctor in the first days of a new post should work to the same standard of public safety as someone with more time in the position.

Medical negligence can be hard to prove, but there are plenty of successful claims made every year. The NHS paid nearly £2.4 billion in negligence claims in the year 2018-2019.

The important thing is to get expert legal advice and support if you are considering making a claim.

We have a team of expert medical negligence solicitors. For more information about how our solicitors can help you with medical negligence claims, please call us on 0800 088 6004, or complete our online contact form, and we will be in touch as soon as possible.