What Is The Legal Definition of Medical Negligence?
“A doctor or hospital owes a duty of care to its patients. This duty of care is breached when the doctor or hospital failed to exercise the standard of the ordinary skilled person exercising or professing to have that special skill (Medicine). A doctor need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill level or an ordinary competent doctor exercising that particular art.” Bolam -v- Friern Hospital Management Committee 1957 – Justice McNair
This is known as the Bolam test.
Put simply -This means that negligence potentially occurs when there is a failure by the doctor or hospital to act in accordance with the standard of the reasonably competent practitioners at the relevant time.
As solicitors we are often asked to give advice on whether or not someone has a potential claim. This involves applying what we know about the law to the facts of the case, as put to us by the prospective client.
In clinical negligence, (often called medical negligence), it is important to remember that not every medical treatment or procedure which goes wrong is necessarily negligence.
In every possible treatment or procedure provided by a doctor to a patient there is a range of possible outcomes, at the extreme positive end there is complete recovery with no need to ever re-attend the doctor, at the other extreme there is death. Most outcomes fall in between these two with some outcomes being positive, I.E. cure or partial cure, some outcomes being negative, partial cure or no cure. Just because a hospital or a doctor have failed to cure or remedy the illness , this does not mean that they have necessarily been negligent.
Clinical or medical negligence is one of the more complex areas of law.
In any claim, we must first establish that there is duty of care.
We must secondly establish that duty has been breached, and we must thirdly establish that the breach of duty caused damage. This is a 3 part test which in turn breaks down into other aspects. Firstly, duty of care, this is the most simple aspect to dispense with. Put quite simply, a doctor owes a duty of care to his patients.
The second aspect breach of duty, is more complex. The Courts have long discussed what a breach of duty would amount to in law, put simply, ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or something which a prudent or reasonable man would not do.
In the clinical or medical context, this has special applications.
Clearly, what the ordinary reasonable man knows about medicine is not the same as what you would come to expect from a qualified medical practitioner. Indeed, Courts have stated that the standard of care which is appropriate in this clinical context is that which applies to any profession requiring special skills, knowledge or experience. Accordingly, breach of duty means a failure to act in accordance with a standard of a reasonably competent practitioner at the relevant time. Hindsight does not apply. Equally, medical practitioners are expected to keep up to date with standards, new treatments, technology and knowledge. To complicate matters further, there may be more than one perfectly proper standard amongst reasonably competent practitioners, in other words there could be two schools of thought of how to best to treat a patient, just because a doctor opts to try one type of treatment and the treatment fails, doesn’t mean he is necessarily negligent, if the doctor can say that a reasonable body of practitioners would have used the same treatment.
Therefore, the definition of medical negligence could be expressed as -a doctor failing to do something which a reasonable body of fellow doctors in the same specialism would not have done and that this caused damage to the patient.
The issue with damage is also troublesome. For example, in a case where a patient presents with a broken bone and an x-ray is taken and the doctor fails to spot the fracture of the bone but, nevertheless, applies a cast or plaster of Paris to that bone, properly affixing it in place then, whilst there had been a breach of duty here (failing to spot the fracture), there has been no damage, simply because the treatment that would have been provided in this case would have been to put the joint in a cast. Obviously, if the joint was grossly deformed as a result of the fracture and the plaster of Paris or cast was not appropriate and, in fact, an operation was necessary then you would have damage.
In any event, treatment which does not meet the appropriate standard will normally involve at least one of the following:-
- Failure to diagnose.
- Incorrect diagnoses.
- Failure to treat, including follow and referral where necessary.
- Incorrect treatment.
- Failure to advise appropriately on the risks.
- Bad administration e.g., failing to send out appointments, poor communication etc.
Finally, a note on consent.
Consent must be obtained to all treatments and the consent must be informed consent based on the risks associated with the treatment.
To establish a breach of duty in this instance, the Claimant would have to prove that the risk which materialised, was not subject to any appropriate warning and this type of treatment carried a risk about which a warning should have been given, again, a reasonable body of doctors in the same specialism are of the opinion that a warning was necessary.
As the reader will appreciate, this is not a particularly simple concept and I have attempted to simplify it as best as I can. Any questions or queries you should not hesitate to contact our clinical negligence team at Treadstone Law Solicitors, Clinical Negligence Department on email email@example.com or Tel No. 0161 685 0070.