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Clinical Negligence – what is it and do I want to do it?

September 25th, 2017

Bringing a clinical negligence claim is not an easy hurdle to overcome, both legally and emotionally. On one hand, you may feel like you want justice to be served, but on the other, you may have the concerns that you will have to “relive” your experiences again. But how do you go about bringing a claim in the first instance.  Solicitor Katarina Morgan explains.

In order to bring a clinical negligence claim, you must satisfy a four-stage test: duty, breach, causation and loss. But what do they mean?

Duty

You must establish a duty of care between the parties, that is, that the practitioner or practice in question owed you a duty of care. This is fairly easy to demonstrate because doctors, hospitals and medical professionals will owe their patients a duty of care. This also applies to healthcare professionals such as physiotherapists, nurses, ambulance paramedics, etc.

Breach

The next step to satisfy is that that practitioner breached the duty owed to you. In doing do, you must demonstrate that the medical practitioner acted in such a way that no other practitioner would have acted. Specifically, you must suffice what is known as the “Bolam” and “Bolitho” tests.

The Bolam test is that the doctor who owed you the duty of care failed to meet the standard of a reasonable body of other practitioners in that field. The Bolitho test is, where a medical opinion is relied on, you must proof that that medical opinion was not reasonable or logical.

The threshold for these tests are not easy to meet because of how high they are. You would need to rely on a medico-legal report to do so.

Causation

In addition to the duty and breach, you have to prove that the medical practitioner’s breach caused you the damage for which you are seeking to claim, or significantly contributed towards it.

Causation is usually the hardest part to demonstrate in a clinical negligence claim, purely because sometimes you can have a breach of duty where the standard falls, but that breach itself does not cause you any damage, or the pain you are suffering is related to something else. Again, this would have to be proven by a medico-legal report from an expert.

Loss

Loss categorises the pain and suffering you have endured because of the practitioner’s breach of duty. This includes physical and psychological damage (that has been diagnosed), and that is not too remote. Remoteness means that the loss has to be reasonably foreseeable.

Loss also includes any financial losses you have incurred as a result of the negligence. Examples of this will be for your earnings for having time off work, expenses, and care and assistance you may have needed.

In order to bring a medical negligence claim, you must satisfy that you have met all stages of the four-part test otherwise your claim is unlikely to succeed. We will assess your case to see if you are meet the threshold to bring a claim and if you have prospects of success, we offer a no win no fee option of funding to proceed.

From experience, bringing the claim is only one part of your legal case; the other is the emotion and strength to press ahead. Whether you want to bring the claim or not, is entirely your decision.

However, our team at Lennons are compassionate and understanding of your experiences. We will always act in your best interest to achieve the best possible outcome, both financially and for the future for you and your family. For example, you may need future treatment or adjustments to your home and work place and we will do our best to ensure these are secured for you if necessary.

Katarina is a solicitor in the Dispute Resolution department at Lennons. She undertakes all areas of dispute resolution including clinical negligence claims, personal injury and breach of contract claims. She advises and acts for individuals and body corporates on an array of litigation matters including breach of contract, debt and insolvency, professional and medical negligence, personal injury and property.

For assistance on litigation and dispute resolution issues, please contact our Dispute Resolution department on 01494 773377 or email us at hello@lennonssolicitors.co.uk.

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