CLINICAL negligence may seem an obvious concept – especially the way it’s bandied about in the media. But when you explore what a clinical negligence case actually involves it is much more complex.
In short, a clinical negligence claim arises when a medical practitioner breaches their duty of care to a patient who in turn suffers an injury as a result of that breach. The existence of a duty of care is a necessary requirement before there can be any consideration of negligence and this duty is surprisingly wide.
Demonstrating that a doctor has breached duty of care is the first major hurdle in any negligence case. Some errors made by GPs are clearly in breach of their duty (i.e. when an incorrect prescription is provided) but it is not always clear cut. Difficulty arises in cases where a GP exercises professional judgment and decides to take one course of action over another, or perhaps decides not to act at all. Certainly within diagnosis and treatment there is scope for genuine differences of opinion and a GP will not necessarily be negligent because a decision taken did not result in the patient’s preferred outcome or because another GP would have acted differently.
To demonstrate a breach of duty, the patient must show that a doctor has followed a course of action which is not supported by any reasonable body of medical opinion with the same experience. In a landmark case – Bolam v Friern Hospital Management Committee (1957) – a patient had undergone electroconvulsive therapy for his mental illness and the doctor had not administered relaxant drugs, thus causing the patient to suffer a serious fracture. Medical opinion was divided as to whether relaxant drugs should be given in ECT. The court held that the doctor was not negligent and the ruling has become known as the “Bolam test”, which states: “A doctor 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. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”
The Bolam test has since been modified by the Bolitho v City and Hackney Health Authority (1997) case which allows for the court to decide which expert opinion is reasonable. (In Scotland, a similar standard is established by Hunter v Hanley (1955).)
In determining breach of duty a doctor is measured against peers rather than some defined (or imagined) level of excellence. If a patient seeks treatment from a GP who makes no claim to any special skill or expertise over and above that, then the patient can only expect that treatment to be provided at a standard considered reasonable and appropriate for an ordinary GP.
However, a GP has the responsibility to ensure they practise within the confines of their own knowledge and experience. Where a doctor fills a more demanding role, a higher standard of care may be applied.
For example, in the case of Wilsher v Essex Area Health Authority, an SHO was attending to a premature baby in an intensive care neo-natal unit when he mistakenly inserted a catheter into a vein instead of an artery. He asked a senior registrar to check what he had done but the SR missed the mistake. The court found that the SHO had provided a reasonable standard of care because although he exercised a specialist skill, he was an inexperienced doctor and had appropriately sought the advice and help of his supervisor. The SR was found in breach of his duty for failing to notice the mistake.
Even if a patient can prove that a doctor did not follow a course of action supported by any reasonable body of medical opinion, this is still not sufficient to bring a successful clinical negligence claim. The claimant must also be able to satisfy the test of causation. In other words it must be proved that the negligent treatment resulted in an injury or medical condition, or that a pre-existing injury or condition became worse or the chances of recovery diminished. For example, if a failure to treat a patient made no difference because they would have died in any event, the patient’s death cannot be said to have resulted from the doctor’s negligence.
However, the patient does not have to prove that the doctor’s breach of duty was the sole cause of the injury. It is sufficient for the patient to show that the breach made a material contribution towards the injury.
So, if a patient can prove they were owed a duty of care by their doctor and that duty has been breached leading to an injury then they may be successful in bringing a clinical negligence claim. But thankfully the standard is a rigorous one. No doctor is immune to mistakes; nor is every mistake grounds for clinical negligence. The law is intended to protect the rights of both patients and doctors.
Rebecca Rymer is a case assistant at MDDUS