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28th June 2016

Medical negligence, otherwise known as clinical negligence, or in the US, medical malpractice, is a type of legal claim for damages for personal injury. Any claim depends on whether doctors or clinicians have fallen below an acceptable standard of care in the opinion of a responsible body of medical practitioners carrying on that particular branch of medicine.  That is known as the ‘Bolam’ Test named after a court case in 1957.

In the 18th century and to some extent in the 19th century, claims in clinical negligence did not happen.  That was because hospitals were generally charitable institutions and it was ‘not done’ to sue charities.   However, as the common law developed, and because of the general public’s awareness of making claims generally, this field of law has developed.

It is worth pointing out that, despite media coverage to the contrary, it is not easy to be successful in a case for clinical negligence.  To prove a case for medical negligence against practitioners, a person does not just have to experience a medical mishap i.e. something that has gone wrong following treatment or surgery.  This could well be a non-negligent mishap.  To succeed in a claim for damages for clinical negligence, it is necessary for the Claimant i.e. the person who is suing, to show that the doctors have fallen below an acceptable standard of care.  If one body of medical opinion considers the treatment to be reasonable and another does not, then subject to a rare exception, a judge will not find negligence.  Negligence is really only a breach of duty of care under the common law, which is expected in English law generally.

The other difficulty in clinical negligence cases is causation, and many cases which succeed on breach of duty, may fail on the question of causation which is: did the negligence/breach of duty cause the damage to the patient.  In other words would the damage have happened anyway even if the treatment had been properly performed?  An example of that is cutting away a tumour from a nerve which results in nerve damage.  If the tumour is malignant, then the patient would no doubt elect to have the operation anyway, knowing that risk.

Medical practitioners have a duty to warn patients of risks, however small, so the patient can make his or her mind up as to whether the treatment should proceed.

If things go wrong, then there is an implied ‘Duty Of Candour’ which means that the medical practitioners should be open and honest about what has happened.  There are various complaints procedures which hospitals and doctors have to follow.  Patients or their relatives can contact the Patient Advice and Liaison Service who provide confidential advice and support relating to such matters and also the Parliamentary and Health Service Ombudsman who can give information on how to complain about improper or unfair acts or poor service within the NHS in England.

Medical negligence cases are expensive to run, however, many claimants find that they have legal expenses insurance attached to household contents policies.  In addition, many lawyers deal with such claims under a ‘no win, no fee’ agreement.

It must be remembered that negligence is a relatively rare occurrence amongst the many thousands of health procedures which are carried out every week.  However, it is when such a procedure goes wrong, and causes a patient or family

Julian Bobak. Solicitor, clinical negligence department.


General, George Ide, Personal Injury Blog
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