Medical negligence

Medical negligence solicitor

Have you suffered an injury because of medical malpractice?

A clinical/medical negligence claim will arise when a medical practitioner breaches their duty of care to a claimant, and as a result of that duty, the claimant suffers an injury.

The medical practitioner might be, for example:

  • A doctor.
  • A dentist.
  • A nurse.
  • A midwife.
  • An NHS or foundation trust.
  • A private hospital.

“Medical negligence claims are complex and it is much more difficult to establish breach of duty of care and causation than it is for, say, a road traffic accident. Many claimants find themselves disappointed that despite having some unexpected or undesirable outcome following treatment, the practitioner is not found to have acted inappropriately (i.e. without reasonable care and skill). Even where breach of duty is established, it is often difficult to show that the breach caused the injury, as it may be that the patient would have suffered the same outcome due to, for example, an underlying medical condition. For this reason, it is important to choose an injury lawyer who is very experienced in this field of law.”

Since medical negligence claims are very complex, it is also important to be clear at the start what outcome you are seeking. For example, many claimants seek an explanation, apology and punishment for the wrongdoing, as a priority over compensation. This being the case, there are other channels besides litigation, such as the NHS complaints procedure, which may address their needs better.

Breach of contract

If the Claimant has received treatment through a private hospital or organisation, for example for dentistry or cosmetic surgery, a claim may instead be brought for breach of contract.

The essence of a medical negligence claim

To be successful in a claim for medical negligence, the Claimant must show the following on the balance of probabilities:

  1. That the medical practitioner owed the Claimant a duty of care.
  2. That the medical practitioner breached the duty of care.
  3. That the Claimant suffered injuries/losses as a result of the breach of duty, and those injuries/losses were reasonably foreseeable.

Duty of care

It is straightforward enough to conclude that a medical practitioner owes their patients a duty of care, and this would rarely be a matter for dispute. The duty of care that a doctor owes to their patients includes for example:

  • A duty to properly assess their condition, taking into account the symptoms, feedback from the patient and findings from any examinations or tests.
  • A duty to administer treatment which may include prescribing drugs, where they have sufficient knowledge of their patient’s health and are satisfied that the treatment prescribed is suitable for the needs of the patient.
  • A duty to be accessible when they are on duty.
  • A duty to work within the limits of their own personal competence, and to consult with and take advice from other professionals where appropriate.
  • A duty to refer their patients to an alternative medical practitioner where it is appropriate.
  • A duty to keep accurate, clear – and legible! – records.
  • A duty to keep their professional skills and knowledge up to date.

If the medical practitioner in question is employed by an NHS Trust or a Foundation Trust, the institutional health provider has vicarious liability for any breach of duty of care that the practitioner makes, as one of its employees. Additionally, the Trust owes the patient a duty of care in itself, and it can be sued for negligence without the need for the Claimant to prove negligence in respect of an individual doctor or practitioner. The logic behind this is that the provider has a duty to provide the services of medical practitioners who have a sufficient level of skill (see: Wilsher v Essex Area Health Authority [1988] AC 1074).

The duty of care that a institutional health provider owes to a patient includes for example:

  • A duty to ensure that staff are provided with sufficient abilities, knowledge and experience.
  • A duty to provide equipment that is in good working order and suitable for the patient’s needs.
  • A duty to maintain working conditions within the institution that do not promote levels of stress or fatigue, which could impact the patient’s care.
  • A duty to provide sufficient training, supervision and instruction.
  • A duty to put in place adequate systems for the storage and retrieval of the patient’s information.

Where the patient has received private treatment, the doctors and healthcare staff may be independent contractors and if their breach of duty leads to a claim, they will be responsible rather than the hospital or institution at which the treatment was delivered. Private institutions are still vicariously liable but only for the actions of their employees – although they still have a duty of care to provide suitable equipment and services.

Breach of duty of care

The Bolam test

Sometimes the fact that the duty of care has been breached will be very obvious – for example, leaving something in the patient that shouldn’t be there following an operation. These errors are known as ‘never events’ in the NHS and the liability of the practitioners involved will probably not be disputed.

There is more difficulty when a medical practitioner embarks on a course of action (or decides to take no action at all) because it would appear to them in their professional opinion as the best thing to do. Naturally there will always be differences in opinion and judgments, and this means that medical professionals will not always be negligent when things do not turn out quite as planned. Remember of course that hindsight is a wonderful thing – a practitioner can only act on the information available to them at the time of making their decision.

So in medical negligence claims, the ‘reasonable man’ test changes. To show that there has been a breach of duty of care, the claimant has to demonstrate that the professional followed a course of action that is not supported by any reasonable body of medical opinion. This is referred to as the Bolam test after the case of the same name.

“The test as to whether there has been negligence or not is not the test of the man on top of the Clapham omnibus because he has a special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises an ordinary skill of an ordinary competent man exercising that particular art … A doctor is not guilt of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art … a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes the contrary view.”

So, if the Defendant, whether the medical practitioner or Trust, can demonstrate that they acted in accordance with a reasonable body of opinion, they will have a defence. The word ‘reasonable’ is significant – for example, it would not be reasonable to follow an opinion if it has since been disproved or shown to be outdated. Likewise, if the Defendant can find one or two experts that support his opinion, it will not allow him to escape liability if that opinion is not in accordance with sound medical practice (see Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151). Sometimes the Bolam test is referred to as the 10% rule – if it can be said that 10% of practitioners in the Country would have acted the same way as the Defendant, and the Defendant’s actions had a logical basis, then they will not be negligent.

There are some additional points to note here:

  • The practitioner’s actions will be judged according to medical knowledge at the time of the alleged negligent act – any advances in knowledge and practice since then of course have to be disregarded.
  • The practitioner will be judged according to the standard of other professionals at their level. Having said that, you will recall earlier that one of the practitioner’s duties was to practice within the confines of their own knowledge and experience. If they choose to go beyond this, they may be judged at a higher standard.

The case of Wilsher v Essex Area Health Authority [1988] AC 1074 explores the position of an inexperienced practitioner:

In Wilshire, Dr Wiles, a Senior House Officer (and therefore a junior), attended to a premature baby in the intensive care unit. The doctor mistakenly inserted a catheter into one of the baby’s veins, rather than their arteries. Dr Wiles asked the Senior Registrar Dr Kawa to check what he had done was correct, and Dr Kawa did not notice the mistake. The consequence was that the child was given too much oxygen and the Claimant alleged this caused near blindness. The Court held that the standard of care required for someone working in the intensive care neo-natal unit was that of an ordinary skilled person exercising and professing to have that special skill, but that standard was not determined by referring to the rank and status of the person filling a particular role, but instead to the nature of the role itself. Dr Wiles in this case elected to perform the duties of the role, and could not use his inexperience as a defence to the claim of negligence. In this particular case, Dr Wiles did seek the opinion of his superior and therefore satisfied the standard of care and was not in breach of duty. Although Dr Kawa was in breach of duty, the Claimant could not establish causation and the claim was unsuccessful.

Res ipsa loquitur

Res ipsa loquitur is a rule of evidence which means ‘the thing speaks for itself’. It is a maxim which means that the facts of the case are sufficient proof in themselves.

The maxim can be applied in clinical negligence cases if the Claimant cannot produce evidence of how or why their injuries happened. Instead they rely on the assertion that the injuries would not have occurred in the absence of the Defendant’s negligence.

In such cases, if it appears more likely than not that the Defendant’s duty of care lead to the injuries, res ipsa loquitur enables the Court to reach the conclusion that the Claimant has successfully established a prima facie case against the Defendant. At this point, it is often said that the evidential burden of proof shifts over to the Defendant who will have to provide some explanation of the events which demonstrates that their actions were not negligent, or alternatively show that they exercised all reasonable care.

In the case of Cassidy v Ministry of Health [1951] 2 KB 343 the Claimant had a problem with two of their fingers on one of their hands, and attended a hospital. After having an operation and undergoing post operative treatment, the Claimant’s whole hand was affected. The Court allowed the Claimant to rely on the maxim of res ipsa loquitur – and in this case the Defendant was not able to offer an explanation of how the injuries occurred without negligence.

Lord Justice Brooke made a number of further important points in the case of Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170 on the approach to  res ipsa loquitur in medical negligence cases, as follows:

  • The maxim of res ipsa loquitur will apply when a Claimant relies on the happening of the thing itself to raise the inference of negligence, which is supported by ordinary human experience without the need for expert evidence.
  • The maxim of res ipsa loquitur can be applied in that form to simple situations in the field of medical negligence – for example, where a surgeon amputates the wrong limb, leaves a swab in following an operation, or a patient awakens during an operation although they have been administered anesthetic.
  • In contested medical negligence cases, it is likely that the evidence of the Claimant who establishes the ‘res’ will be strengthened by expert evidence that supports that what happened does not ordinarily happen without negligence.
  • The position may then be reached at the end of the Claimant’s case that the judge is entitled to infer negligence on the part of the Defendant, unless the Defendant can produce evidence of their own to discharge that inference.
  • The evidence adduced by the Defendant may provide a plausible explanation of what might have happened which doesn’t rely on negligence having taken place on the Defendant’s part.
  • As an alternative, it may be that the Defendant’s evidence satisfies the judge on the balance of probabilities that the Defendant did exercise proper care.
  • Should the undesirable outcome be very rare or extremely difficult to explain with current medical knowledge, the judge must exercise a great deal of care in evaluating the evidence before them, before coming to any conclusion.

As for road traffic accidents, res ipsa loquitur is not commonly used in medical negligence cases. Although the Claimant might not have full knowledge of the events that occurred (as very often they will have been under anesthetic), in practice usually both parties will bring expert evidence to trial.


For medical negligence claims, the Claimant needs to show that, because of the negligent treatment of the medical practitioner (for example):

  • the Claimant suffered an unexpected injury or condition.
  • the Claimant’s pre existing condition or injury got worse.
  • the Claimant failed to recover from a condition.
  • the chances of the Claimant recovering from a condition were reduced.

If a Claimant should die, the Claimant’s dependents or estate can argue that the death was caused by negligence.

However, causation is much more difficult to argue in medical negligence cases than it is for, say, personal injury cases. The reason is that, in the majority of personal injury cases, the Claimant will be perfectly healthy prior to the accident – but for medical negligence cases, very often the Claimant will be seeking treatment for a condition and it is far more difficult to show that ‘but for’ the breach of duty of care, the same outcome would not have come about.

Also slightly different from personal injury cases – in medical negligence cases, the term ‘liability’ is used exclusively in relation to breach of duty of care and does not automatically apply to causation. The issue of causation is dealt with as a separate matter, and expert evidence is often required to reach a decision on this point. If a Defendant should admit that they are liable before the case goes to trial, the Claimant’s lawyer will also need to check whether or not this means they admit causation.

The ‘But For’ test

The standard ‘but for’ test applies to medical negligence cases – the Claimant must show that, on the balance of probabilities, ‘but for’ the Defendant’s breach of their duty of care, the Claimant would not have suffered their injuries. So it follows that if the medical practitioner treats – or fails to treat – the patient, but the outcome would have been the same anyway regardless of their actions – the outcome is not caused by the medical practitioner’s negligence.

The most oft-quoted case on this topic is Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. In this case, three night watchmen went to casualty complaining that they were vomiting having drunk tea three hours before. Each of the men were sent home, told to go to bed and to call their doctors if needed. They did just that, but one of the men died later on, and it was discovered that he was suffering from arsenic poisoning. However, even if the doctors at the hospital had treated the Claimant, he would have died anyway – so on the balance of probabilities, the Defendant’s negligence was not found to have caused the Deceased’s death.

It should be noted however that the Defendant’s breach of duty of care does not have to be the only cause of injury. The only requirement is that the breach of duty made a material contribution to the injury – that is, more than minimal.

In Bailey v Ministry of Defence [2008] EWCA Civ 883 the Claimant attended the Defendant’s hospital for a medical procedure. She was not properly resuscitated and consequently had to undergo three medical procedures afterwards. The argument put forward was that had she been properly resuscitated, she would have only  required one of those procedures. The three procedures made her weak, and this together with the development of a natural condition, pancreatitis, led to the Claimant inhaling vomit, going into cardiac arrest and suffering from brain damage. On appeal, the Court upheld the original judge’s findings that it was not possible to say whether the weakness was caused mostly by the pancreatitis or mostly by the negligence, but each of these factors had contributed materially to her overall weakness, and it was this overall weakness that resulted in the patient being unable to respond to the vomit and thus, the subsequent injuries that she sustained. The Court therefore ruled against the Defendant.

It is also possible that more than one medical practitioner will be found responsible for a Claimant’s injuries as a consequence of negligence.

In Prendergast v Sam and Dee Ltd (1989) The Times, 14 March, a pharmacist failed to properly read a prescription and gave the Claimant the wrong drug, resulting in irreversible brain damage. In this case, the pharmacist was found to be 75% liable, and the doctor who wrote out the prescription note was found to be 25% liable because it was almost impossible to read his handwriting!

Causation: failure to warn

For every medical procedure carried out, a medical practitioner will, of course, seek the consent of their patient, and in order to gain a proper consent, the patient must be made fully aware of any risks in the procedure to be performed. If the practitioner does not adequately inform the patient and the risk subsequently materialises, the Court will need to consider whether the patient would have consented anyway, had they been informed of the full risks. If the answer is yes, they would have consented, then causation will not be established. If however the Court reaches the conclusion that the patient would not have consented, there is a clear breach of duty of care in failing to warn the patient of the risks. In that case, the Claimant will be entitled to damages that reflect the difference between their condition, and the condition they would have found themselves in if the operation had not been performed.

Chester v Afshar [2004] UKHL 41 is an interesting case on this point. In this case, the doctor failed to warn the patient of a small risk involved in the procedure (1-2%) and the risk materialised. However, the Claimant was not able to say that she would never have the operation, had she known about the risk. She could only say for sure that she might have delayed the operation, and looked for alternatives. Of course, the failure by the doctor to warn had not increased the risk, and so the ‘but for’ test was not satisfied. Still, the House of Lords ruled in favour of the Claimant. Their decision was based on the fact that the loss arose from the violation of her right to make an informed choice, due to the failure of the doctor to warn.

Causation: loss of chance

As noted above, Claimants must prove causation on the balance of probabilities. Therefore a Court will not allow a claim for the loss of chance of recovery where the chance of recovery is less than probable.

In Hotson v East Berkshire Health Authority [1987] Ac 750, the facts of the case were that a boy had climbed a tree, slipped and fallen 12 feed to the ground. He was taken to the hospital and the staff there did not correctly diagnose a fracture – instead he was sent home and told to rest. On return to the hospital, the fracture was spotted but because it was missed initially, he suffered from a disability of the hip and there was a risk he would develop osteoarthritis later on. The judge first hearing the case ruled that had the Health Authority diagnosed the fracture and treated the boy on his first attendance to hospital, it was highly likely (which the judge assessed at a 75% risk) that the outcome would have been the same. Or to put it another way, failure to diagnose the fracture initially cost the boy a 25% chance of making complete recovery. The Claimant was therefore granted 25% of the damages. The Defendant appealed to the Court of Appeal but this was dismissed – however, the House of Lords overturned this decision, ruling that the Claimant had failed to prove causation because the lost chances of recovery, at less than 50%, were less than probable.

This approach was also confirmed in Gregg v Scott [1005] UKHL 2.

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