What do you need to prove in a clinical negligence claim?

If you have received poor medical treatment, you may be wondering whether you can make a clinical negligence claim. A medical mistake or a disappointing treatment outcome does not though automatically mean you have an actionable claim. You must be able to show that the treatment fell below an acceptable standard and that it caused you injury and loss.

To make a successful clinical negligence claim, you need to establish that:

• a healthcare professional owed you a duty of care;
• the care you received fell below the appropriate standard;
• this substandard care caused you an injury or made your condition worse; and
• you suffered a resulting loss.

What is a clinical negligence claim?

A clinical negligence claim can be made when a patient receives substandard care which causes them injury or loss.

Compensation can be claimed in order to put the injured person back into the position, as much as it is possible so to do, that they would have been in had they not received substandard care in the first place.

Substandard care could be:

• a delayed or incorrect diagnosis;
• a failed or unsatisfactory surgery;
• inadequate or incorrect care;
• a failure to carry out appropriate investigations;
• inappropriate advice about a course of treatment; or
• a failure to provide suitable follow-up care.

These could be errors or omissions made by your GP, hospital, or dentist - including both NHS and private providers.

We know that on the whole healthcare within England and Wales including NHS care is excellent and most people don’t experience any difficulties. However occasionally things can go wrong and do go wrong, and this is acknowledged by NHS Resolution who manage claims on behalf of the NHS.

Where things go wrong, and patients suffer injury and associated losses, they may be able to make a clinical negligence claim.

What you must prove for a claim to be successful

You must prove three core elements:

• a duty of care existed,
• that duty was breached by the medical practitioner(s) involved, and
• that breach of duty caused you injury (whether physical or psychological) and loss, which is known as causation.

Duty of Care

There is a legal duty of care owed by healthcare professionals to their patients: to provide treatment with reasonable skill and care and to act in the best interests of their patients.

This applies whether the medical practitioner is working in the NHS or the private sector.

The first step in any claim is to identify the healthcare professional or organisation responsible for the treatment.

This could be an individual practitioner, an NHS hospital trust or a private healthcare provider. This can sometimes be harder than it first seems.

The question of whether a healthcare professional owed a duty of care is rarely a disputed issue.

The more important issue is identifying who the correct Defendant is. 

Breach of Duty

Once the correct Defendant is identified, the next step is to prove that the care you received fell below the standard of care expected.

To prove this element of your claim you must show that a reasonable body of medical professionals would not have acted in the way the healthcare professional treating you did.

This is done with the assistance of independent ‘like for like’ medical experts commenting upon the care provided.

A healthcare professional is not automatically negligent simply because their treatment was not the best possible or "gold standard" care.

Instead, negligence is usually established when the care provided falls below the standard that a reasonable body of competent healthcare professionals in the same field would be expected to provide.

For example, a patient attends an urgent care centre after a heavy fall and is unable to weight bear on their swollen leg. The examining medical professional diagnoses a sprain but without having the injured patient’s leg X-rayed.

An independent medical expert advises that no reasonable body of examining medical professionals would have failed to carry out an X-ray where a patient is unable to weight bear.

The failure to X-ray was therefore substandard and a breach of duty.

Causation: Did the breach of duty cause harm?

Once it has been established that the care provided was substandard, the next step is to prove that this inappropriate care has caused you injury and loss. This is known as causation.

Inappropriate care that does not cause injury isn’t something which can be taken forward as a clinical negligence claim and instead would be the subject of a complaint only.

However, if substandard care has caused you injury, or materially contributed to it, then causation would be found and a claim could be made.

Causation is often the most complex element of any clinical negligence claim, and supportive expert medical evidence is vital to proving any causative injury or loss.

These complexities often come about due to a need to differentiate between those injuries which would have occurred in any event due to underlying medical conditions, and those derived, or caused, by the substandard treatment.

In our example above, the patient that suffered the heavy fall may later discover that they had in fact suffered a fractured leg during their fall.

If the treating medical professional had undertaken an X-ray at the time, then the leg fracture would have likely been diagnosed earlier. If the delay in diagnosing the fracture allowed it to worsen, resulting in more extensive treatment or a poorer recovery, then this will establish causation.

However, if a later X-ray shows that the fracture did not deteriorate and the patient requires the same treatment they would have always needed, then the failure to arrange the first X-ray may not have caused any additional injury.

It is therefore essential to show that the substandard care, or breach of duty, has caused injury that would not otherwise have been caused for a claim to be successful. It is not enough to just show that the care was substandard.

What evidence is needed for a clinical negligence claim?

Clinical negligence claims often depend on detailed medical and independent expert evidence.

The evidence needed will depend on the circumstances, but may include:

• your medical records;
• scans, X-rays and test results;
• a statement from you explaining the negligent treatment you received and what happened afterwards;
• independent medical expert evidence;
• evidence of your injuries;
• details of any care, treatment or rehabilitation you require; and
• evidence of financial losses and additional expenses.

What compensation can be claimed?

If you can prove liability, by evidencing both breach of duty and causation, then compensation can be recovered for the injury and any associated financial losses.

This will include General Damages (compensation for the pain suffered and loss of amenity incurred) and Special Damages (additional losses such as loss of earnings, additional care needs, treatment costs, and other expenses).

The amount of compensation will depend on the individual circumstances, including the severity of the injury, its long-term effects and the financial losses suffered.

Medical and other specialist experts may again be needed to help assess any future needs and calculate the appropriate level of compensation.

How long do you have to make a clinical negligence claim?

Generally, a clinical negligence claim needs to be brought within 3 years of the alleged negligent care or the date you first became aware of the alleged negligent care. This 3-year timeframe is known as the limitation period.

Different rules can apply in certain circumstances, including for children where the 3-year time period would only start once they turn 18 years old.

The matter of calculating the limitation period can be complex. To avoid missing the chance to make a claim it is important to seek legal advice without delay, and as soon as you think you may have the basis of a claim.

Speak to Battens Solicitors’ clinical negligence specialists

Our clinical negligence solicitors can discuss what has happened to you, review the circumstances surrounding your treatment and explain whether further investigation may be appropriate.

Where there are reasonable grounds to proceed, we can help obtain the relevant medical records, arrange expert evidence, and assess the impact of the substandard treatment on your health and everyday life.

We have the necessary experience to advise you should you believe you have a claim.

Reach out today to discuss further with our experienced clinical negligence specialists.