You may be surprised (and somewhat perturbed) to hear the true scale of healthcare ‘adverse events’ in the UK – these are defined as “instances which indicate or may indicate that a patient has received poor quality care”. The Department of Health estimates that 10% of hospital inpatient admissions lead to an adverse event. And according to NHS Resolution (the official body charged with managing NHS related compensation claims), they handled 16,701 cases of clinical and non-clinical claims for damages between 2017 and 2018. For each of these, it would have been necessary to establish and prove that negligence occurred; but what is the test for negligence and how is this applied?
In this article, we will outline the three-part test which a specialist clinical negligence solicitor will assess on your behalf before proceeding with your case.
What is the three-part test?
For any legal action arising from negligence, it must be proven that:
- The medical practitioner owed a duty of care to the patient, and;
- That duty of care was breached, and;
- The patient suffered harm as a result of the breach.
It is all too easy to automatically assume that by being injured in a medical setting, compensation is due as a result – but often when applying the test above, we find that while one or two may be answered in the affirmative, not all three can. For this reason, we recommend before pursuing any course of action for yourself or on behalf of a loved one, you seek expert advice to check your eligibility to bring a claim for compensation.
Let’s take each test in turn…
How do we establish a duty of care was owed by a medical professional?
The first is the most straightforward of the tests. The law imposes a ‘duty of care’ on all healthcare practitioners in situations where it is “reasonably foreseeable” they could cause harm to patients through their actions or omissions. Importantly, this duty is owed when a practitioner has assumed any responsibility for the patient’s care. In other words, a duty of care is owed by any practitioner even if they are not your lead physician and can include any clinical role such as a doctor, nurse, midwife, nurse assistant, allied health professional, or paramedic.
How do we prove the duty of care was breached?
Another way of asking this question is to consider whether the ‘standard of care’ received was sufficient. This is commonly answered by applying the ‘Bolam’ standard, which compares the medical practitioner’s actions with those of their peers by asking whether the level of care provided would be expected from a reasonably competent professional.
One of the challenges with this test is that it depends on expert medical opinion which may vary – i.e. there is an element of subjectivity. Our role as clinical negligence solicitors is to ensure there is reason to believe that the standard of care received fell below that of a ‘reasonably competent’ professional, and then obtain the expert evidence to support this.
How do we prove the patient suffered injury as a result of a breach of duty?
Now we know the healthcare professional had a duty of care and they made an error which their peers would not have made, but this is still not enough to prove clinical negligence occurred; we still need to show a link between the error and the injury.
In some cases, this can be quite straightforward, especially where there is an obvious and immediate injury due to negligence – this may even be documented as such in the clinical notes of the patient. But in reality, many cases are not so clear-cut. For example, if a particular procedure or medication causes side effects, but these were not explained to the patient or no consent was gained (depending on the context), and they went on to suffer harm, this may amount to medical negligence. It would then be necessary to prove that the side effects were not explained.
It is also common to see cases whereby it is initially believed that a delay in diagnosing cancer has led to the disease becoming incurable. If the delay did not, in fact, change the prognosis of the patient, then this third test would fail – i.e. the delay did not cause any additional physical harm to the patient.
In other cases, it is more obvious that the mistake caused injury – this is referred to in Latin as ‘res ipsa loquitur’ (translated as ‘speaks for itself’). This would be the case if a surgeon operated on the wrong side of the patient or provided the wrong medication.
It is, therefore, the role of the clinical negligence solicitor to make sure that sufficient evidence is provided which will prove a causal link between the mistake made and the harm caused. This is where experience truly counts in achieving a successful outcome. Knowing when to seek expert medical opinion, who to seek this from, and the level of detail needed can make all the difference.