Understanding The Essentials Of A Clinical Negligence Claim

The healthcare system in the UK is a complex machine with countless moving parts and dynamic elements to it. Whilst this complex machine is designed to run smoothly, like any machine, the reality is that, from time to time, things do go wrong, and mistakes do happen. Unfortunately, when it comes to a patient’s health, the result of a mistake, especially one which has caused substantial harm, can be both physically and emotionally devastating for all involved.

In this guide, I explore the importance of medical experts to the process of bringing a clinical negligence claim in the UK. Ultimately, medical experts are the lifeblood of these claims, and their support and expertise is the primary determinant as to whether a claim succeeds or fails.

What is the legal framework for clinical negligence claims?

All healthcare professionals in the UK have a legal duty of care to their patients to exercise reasonable skill and care in their role to avoid causing harm. Where there has been a breach of this duty of care, and it has resulted in harm to a patient, it could give rise to a potential clinical negligence claim. This legal duty of care applies to all medical practitioners including doctors, surgeons, nurses… the list goes on.

In order to bring a successful clinical negligence claim, the burden is on a patient to prove the following: –

1. Breach of duty

To put forward an argument that a healthcare professional has breached their legal duty of care; it must be proven that their conduct was negligent.  In practice, to establish a breach of duty, one must prove that the care or treatment provided failed to align with what would be considered reasonable by a responsible body of medical professionals with the same expertise.

2. Causation

Even if it can be established that care or treatment has fallen below the expected standard, it is not enough to bring a successful clinical negligence claim in the UK. One must also establish ‘causation’ which effectively means proving that any harm/injury suffered was either directly caused, or materially contributed to, by the breach of duty of care.

If a patient can meet the criteria above, they will have established liability in the claim, and the final stage of the process will be to quantify the sum of compensation which ought to be payable. This involves a detailed analysis of a patient’s injuries, condition, and prognosis arising from the injuries/harm suffered so as to assess what level of compensation is appropriate to put the patient, insofar as it is possible, financially back in the same position they were in prior to the negligence occurring.

What role do medical experts play in clinical negligence claims?

Given the significant complexities inherent in healthcare and medical practice, the expertise of healthcare professionals is required to assist the Court on all aspects of a clinical negligence claim, from the process of establishing liability, to the process of quantifying the sum of compensation which ought to be payable.

It would be an understatement to say that the role of medical experts in these claims is indispensable. From a legal perspective, the role of a medical expert in a clinical negligence claim can be understood by exploring the following key questions:

How is the standard of care established in clinical negligence claims?

From a lawyer’s perspective, the first step in a clinical negligence claim is generally to access a patient’s medical records and then begin the process of identifying an appropriate medical expert(s) to advise on exactly what the standard of care required was at the time of the alleged negligence.

It is worth noting that it is not appropriate to approach any medical expert to advise on such issues. Indeed, if a patient has suffered injury or harm at the hands of a neurosurgeon, the Court will not accept the opinion of a GP as an authority on what constitutes an appropriate standard of care. In this hypothetical scenario, the Court would require an expert of like-discipline to advise on what care and treatment ought to have looked like; in other words, it is for a neurosurgery expert to advise on the care and treatment provided by another neurosurgeon.

How is a breach of duty identified in clinical negligence claims?

Once the standard of care is defined, it will be for the same medical expert(s) to review the patient’s medical records, assess the care and treatment that has been provided, and then give an opinion as to whether this fell below the required standard. It the medical expert does identify that care or treatment was substandard, then a case for breach of duty is likely to succeed.

Again, the Court will only give credence to the views of a medical expert with appropriate expertise in the same discipline as that practiced by the practitioner who is alleged to have caused the injury/harm.

How is causation proven in a clinical negligence claim?

When it comes to the thorny issue of causation, medical experts become essential in unpicking a patient’s injuries and symptomology and advising on what exactly can be attributed to the negligent treatment provided.

Causation is a complex area, and there are often several issues for the medical experts to explore. For instance, if a patient were to suffer a complication following a routine procedure, the medical expert may need to draw a line between those complications which are recognised and ultimately unavoidable risks of the surgery, and those complications which can be attributed to negligence. Indeed, the Court will only award compensation for those complications which are the result of negligence, as opposed to those complications which the treating healthcare professional could not avoid.

Unlike the issue of breach of duty, the Court will not always rely entirely on medical experts of like-discipline to provide their views, and it could be that a host of experts are required to fully analyse and unpick the injuries suffered to reach a view on whether it can be linked back to the negligent treatment. For example, if a patient were to suffer a negligent complication during a routine orthopaedic procedure resulting in damage to the brain, the Court would seek to rely on multiple expert disciplines, such as an orthopaedic specialist and a neurosurgery/neurology specialist in this context, to advise on the issue of causation.

How are a patient’s condition and prognosis assessed?

If liability is established, then the final step in the claim is to assess the level of compensation that ought to be awarded.

In assessing this, the Court will rely on medical experts to determine the extent of the patient’s injuries, the ongoing impact of the injuries on all aspects of daily life, and the anticipated long-term impact. The Court must understand the full wide-ranging impact of what has happened in order to accurately assess the level of compensation that should be paid.

Depending on the nature of the injuries suffered, and the patient’s ongoing needs, it is common to seek assist from a variety of different disciplines here. For example, if a patient has suffered a spinal cord injury resulting from medical malpractice, one might expect to seek evidence from a spinal rehabilitation specialist, a care expert, a physiotherapist, an occupational therapist, a urologist, a psychiatrist etc.

How do medical experts support the litigation process?

Within a clinical negligence claim, it is common for both the Claimant and the Defendant to each instruct their own separate medical experts to advise on aspects of the claim, whether it be liability or condition and prognosis. It is not, however, always required, and it is worth noting that the duty of a medical expert is strictly to assist the Court, rather than to side with the party who has instructed them.

Throughout the life of the claim, the medical experts are required to prepare written reports dealing with their findings. Once they have done so, it is not uncommon for medical experts to support the claim further by either meeting with their instructing legal team to discuss their evidence in more detail, or by discussing the evidence further with their opposite number to try and narrow the issues in dispute.

Whilst most clinical negligence claims do tend to reach settlement prior to ever reaching a Courtroom, in the event that a claim is not able to be resolved amicably by out-of-court settlement, a trial before a Judge is required, during which the medical experts for each party are required to take the witness stand to take questions from each legal team on their evidence.

Conclusion

The role of medical experts in clinical negligence claims cannot be understated; they permeate each and every aspect of these claims. The reality is, lawyers don’t sue doctors, doctors sue doctors.

Given how important medical expert evidence is to the success or failure of a claim, it is important that patients who have suffered injury / harm as a result of substandard care have access to experienced legal advisors who can approach and instruct the very best experts to support their claims.

If you or someone you know has suffered injury/harm as a result of clinical negligence, it is recommended that you speak with one of our legal professionals immediately. Email your query at mail@anthonygold.co.uk or call us on 020 7940 4060.