What is “clinical negligence”?
Breach of a duty of care
Every year, hundreds of millions of people receive medical treatment of varying degrees of seriousness, and the vast majority of them are treated with the utmost care, professionalism and effectiveness. Occasionally, however, things can go wrong, and when they do the distress felt by the patient concerned is bound to be compounded by the fact that being unwell is stressful enough in the first place, and that submitting to any type of medical treatment – even something as simple as a dental extraction for example – involves placing a large degree of trust in the hands of the practitioner involved.
If it seems clear that the treatment you received fell below the high standards you’d naturally expect, and that this failing led to you become injured or ill, then you may be in a position to make a claim for compensation. Claiming compensation isn’t a case of ‘punishing’ the medical practitioner involved, and it should be noted that even a successful claim won’t necessarily result in:
a) An apology
b) A change of medical policy
c) The medical practitioner being censured
What claiming compensation is about consists of two fundamental planks; recognising the suffering you’ve undergone, and making sure that you don’t end up being financially worse off as a result of the negligence you’ve endured.
Winning a claim for clinical negligence means proving, or at least establishing a probability of more than 50%, that the treatment you received was negligent, and that this negligence, rather than any underlying illness or condition, led to the ongoing problems impacting upon your life. Although these principles are the same as those which apply to the vast bulk of personal injury compensation claims, clinical negligence cases are amongst the lengthiest and most difficult to mount, in that they often revolve around two sets of experts presenting contrasting opinions of complex medical matters.
The test for clinical negligence
For many years, the legal test for clinical negligence was known as the Bolam Test. This arose from the direction given by the judge to the jury in the case of Bolam vs Friern Hospital Management Committee in 1957. The case involved a claimant who was being given electroconvulsive treatment in an attempt to remedy his mental illness. The doctor applying the treatment did not prescribe relaxant drugs and, as a result, the claimant suffered a serious fracture. At the time, medical opinion was divided as to the effectiveness of relaxant drugs, which presented a small risk of death if given, and a small risk of fractures if not given.
The claimant’s case was that the doctor had failed in his duty of care by not administering the drugs, but the court found in the doctor’s favour, as a result of which the House of Lords created the Bolam Test:
“…a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…”
In simple terms, this means that a medical practitioner has not been guilty of negligence if it can be shown that most practitioners, in the same circumstances, would have taken the same course of action.
In recent years, however, a more flexible interpretation of clinical negligence has been utilised by the courts, in recognition of the fact that the Bolam Test doesn’t cover circumstances such as those, for example, in which a medical practitioner undertakes a course of treatment without first ensuring that the patient is fully informed as to the potential risks involved. The most recent interpretation of clinical negligence, known as the Bolitho Test, is based on a consideration of ‘what ought to be done’ rather than simply whether what was done would have been done by most practitioners. In cases such as these, whilst taking on board expert medical opinion on matters such as diagnoses and treatment, the court will then consider whether alternative courses of action would have produced a more positive result and whether, by rejecting or failing to consider these courses of action, the practitioner concerned behaved negligently.
The court will also examine current practice – the cornerstone of most defence cases – in the light of whether, as well as being ‘current’, it is logical and reasonable. What this change of emphasis means, broadly speaking, is that it is less easy for medical practitioners to set up a kind of ‘closed shop’ of practice, in which they can establish their own version of the accepted norms and then call upon each other to testify as to these norms.
The fact that the relatively simple outline of the legal practicalities of a clinical negligence case given above is still highly complex – even before the individual medical and scientific details of a specific case have been taken into account – underlines the need for anyone who feels they may have been treated negligently to obtain expert legal help when trying to seek redress.
NHS or private
Although the principles – legal and practical – behind any clinical negligence claims remain the same whether the treatment was provided by an NHS or private practitioner, there are a few differences in practice. The main points of difference are that the NHS has its own Litigation Authority (NHSLA), an independent body which deals with any claims made against it. The health service is also covered by a written constitution which outlines the right of any patient to complain, to have their complaint dealt with as efficiently as possible, to be informed of the findings of any investigation into their complaint and to receive compensation if they have been treated negligently.
The NHSLA’s latest statement says: ‘Last year we paid over £1.1 billion to patients who suffered harm and their legal representatives, this coming year it will be c £1.4 billion.’
Taken as a whole, compensation figures such as those given above may seem extremely large and may help to foster the view, often put forward by some sections of the media, that the NHS is in danger of being crippled by the burden of compensation claims. This has to be placed in the context of two factors, however.
Firstly, the NHS is a huge organisation employing more than 1.6 million people, and secondly, the number of claims made against the NHS actually only represents as little as 0.005% of all the patients handled. The NHSLA itself, in its’ Annual Report, boasts that, of the claims that were taken to trial in the last year 64% of the clinical cases and 63% on the non-clinical cases were successfully defended, resulting in savings of £41.6 million.
Weighing all of this in the balance, and considering the overall amount of compensation rewarded, it can be seen that the distressing personal details of individual cases – frequently leading to a lifetime of suffering – mean that the compensation given out is merely a reflection of the serious nature of the neglect involved, and also that the NHS is not in the habit of giving compensation to undeserving cases.
Whether you are making a claim against an NHS practitioner or one working in private practice, the underlying facts remain the same; mistakes were made, you’ve suffered as a result and you shouldn’t be left paying the ongoing price.
Claims of clinical negligence can be made against a huge variety of practitioners, from nurses and doctors to surgeons and dentists, and may involve misdiagnosis, mistakes made during surgery, failure to diagnose an illness, incorrectly prescribed medication and a failure to fully warn a patient of the risks of a course of treatment. In some cases, such as those involving treatment provided by a team of practitioners, the precise cause of the negligence may be harder to pin down, and may ultimately revolve around wider practices and processes rather than the actions of an individual. In cases such as these your clinical negligence solicitor may advise making a claim against a wider body such as a hospital management team or NHS trust.
In the event of a claim being made against a private practitioner, the defence will be mounted by either the individual or the management of the clinic concerned. In all cases, the medical practitioner will be covered by indemnity insurance against such claims, as set out in legislation in The Health Care and Associated Professions (Indemnity Arrangements) Order 2014.
When to claim
No matter what the individual details of your claim are, success is more likely if you launch a claim as quickly as possible after the negligence, and its effect, becomes apparent.
Although the NHSLA pledges to settle claims within 12 months, the process may sometimes take much longer, particularly if the practitioner involved denies negligence. In many cases, the defendant may admit liability but argue the extent of the injury caused and the impact it will have on your life going forward. In cases such as these, an interim payment may be granted, allowing you to begin rebuilding your life whilst the experts argue as to the nature of your illness or injury, and the degree to which it can be blamed upon your treatment.
One of the advantages of launching a claim quickly is that the details of your treatment, and of any expenses arising from your injury, are more likely to be fresh in your mind. When building a case, your solicitor will also request a copy of your medical records, and the notes made by your doctor may play a large part in establishing the presence of any negligence. According to the General Medical Council, the body to which all medical practitioners in the UK must be registered, good practice dictates that the notes kept by doctors should meet the following standards:
- Documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards.
- You must keep records that contain personal information about patients, colleagues or others securely, and in line with any data protection requirements.
- Clinical records should include:
a. relevant clinical findings
b. the decisions made and actions agreed, and who is making the decisions and agreeing the actions
c. the information given to patients
d. any drugs prescribed or other investigation or treatment
e. who is making the record and when.