In this firm we hold our country’s medical professionals in high esteem, but things do go wrong. When a health professional makes a mistake it can cause a lot of pain and financial loss, and sometimes death.
It is always best to call us to discuss these types of cases, but below is a short guide to help understand the issues we might discuss. Some of the explanation uses legal language.
Duty of care
Health professionals owe a duty of care to anyone who they treat or whose care they administer. It is only very rarely that a duty of care may not exist.
The extent of the duty changes depending who the health professional is though. For example, the duty owed by an orthopaedic surgeon is different to that owed by a dentist, or to a paramedic or GP.
Breach of duty
It is necessary to show that whatever the health professional did (or failed to do) fell below the standard expected of a reasonably competent professional in that particular field of medicine. The test of whether they breached the duty of care owed is whether they have failed to meet the standard of a reasonable body of other practitioners also skilled in that field. This test is known as the “Bolam test”.
In a follow-on case “Bolitho” this test was added to, so the medical opinion relied upon by the health professional must itself be logical and reasonable.
It is important to realise that it is what the health professional did at the time that is relevant, and not how they would have acted had they known about the damage that would be suffered. Health professionals often have to make an educated guess based on what a patient says or what an examination shows, and if their decision was reasonable at the time they may not have breached their duty of care even if someone else might have acted differently.
Was damage done?
This is also called “causation”
We have to show that the health professional’s breach of duty either directly caused damage or materially contributed to it. This part of the claim is very often difficult to prove; it may be easy to prove that there was a breach of duty but this does not mean that the breach caused any damage.
The Bolam test referred to above is one such case, where the doctor breached the duty of care but Mr Bolam would have died anyway.
It may sometimes be the case that the health professional will admit that there has been a breach of duty. This does not automatically mean that the case will succeed as causation is always an issue and sometimes a case can fail because of this.
If you can prove that a duty of care has been breached, and caused damage, then the extent of that damage must be proven.
The court tries to put the claimant into the position they would have been in had the breach of duty not occurred.
Sometimes this is easy. For example, a mistake may mean that someone needs another operation that causes short term pain and a small scar. At the most tragic it can involve a brain injury caused to a new-born baby, or someone dying.
This refers to physical and psychiatric injuries. Psychiatric injury is a legal phrase that means a recognised psychiatric injury, such as post-traumatic stress disorder, anxiety disorder or adjustment disorder. This does not include grief or emotional upset.
Money cannot take away physical or psychiatric injuries but this is the only way an injury can be compensated. It is usually referred to as Pain, Suffering and Loss of Amenity or PSLA. In England and Wales these sums are not large.
Strictly speaking general damages also includes losses that cannot be calculated or future financial losses that cannot really be known. For example, the cost of the time that family or friends provided help, or any financial losses that might happen in the future, such as where a person has to retire early and they have lost the potential pay they would have earned.
Special damages are the financial losses caused by the breach. The simplest example is lost earnings, so if someone is off work for a month and lose their pay, they can recover the amount they have lost. There are many rules covering what can be claimed and what cannot, but this web page is not really meant to go into much detail. It is better to talk about the losses.
This is an important principle for every case, not just medical negligence. It means that everyone with a claim has a legal duty to avoid losses that can be avoided or to minimise them.
This does not mean that a person has to do everything possible to avoid a loss, but they do have to be pragmatic and reasonable. For example, if physiotherapy is recommended to help the healing process, a person should do it so that recover more quickly, possibly with a better outcome.