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Under what circumstances can I make a claim for medical negligence?

Medical negligence

If a doctor does not follow the usual practice without good reason and this results in injury to a patient, then it is likely that the doctor has breached the duty of care requirement, and will be found to have been negligent.
The following three elements must be established in determining a breach of duty :

  1. There is a usual and normal practice (as justified by precedent cases or approved by recognised medical bodies) for conducting the medical treatment in question; and
  2. the doctor responsible did not follow that normal practice; and
  3. the practice that the doctor has adopted, or the method he has used, is one that no person in that profession with ordinary skill would have used if they had been acting with ordinary care (examples include a doctor ignoring an important step in the treatment, or applying a treatment in a way that no other reasonable doctor would have done).

After considering all of the evidence, including explanations of relevant medical reports, it is ultimately for the Court to determine whether the defendant is liable for medical negligence.
You must accept that your belief, however strongly held, that a doctor is to blame for a medical accident, is irrelevant under the law. A claim will not succeed unless it is proved, on the balance of probability (i.e. more than 50%), that:

  1. there were serious errors in your medical treatment which no competent doctor would have made and that the alleged facts, including the injury and resulting loss, are true; and
  2. a duty of care was owed to the claimant by the doctor (or other health carer) accused; and
  3. there was (i) a breach of that duty which (ii) caused or materially contributed to the claimant’s injury and loss, i.e., that there was negligence.

The idea that any patient who experiences any adverse effects resulting from a medical treatment can successfully bring a claim for medical negligence is somewhat misconceived. Medical negligence claims explore much more complex issues, such as the standard of care provided and the performance of the medical professional in question.

A patient must be able to prove that it was the poor performance of a medical professional that has caused the unsatisfactory result. This process is known as establishing causation and is usually based on the evidence of an expert witness. It is this stage, proving that there is a direct link between the actions of a medical professional and the harm that a patient has experienced, which often proves to be the most difficult in a medical negligence claim.