Clinical Negligence
Investigating Your Case
What you have to prove
In order to obtain damages for negligent medical treatment, it is necessary to prove that the Doctor (or other healthcare professional)
- owed you a duty of care
- was in breach of his duty of care, and
- that the breach caused you to suffer an injury.
Duty of care
There is usually no difficulty in establishing that you were owed a duty of care in a clinical negligence case, because you are likely to have been a patient of the Doctor (or other healthcare professional) who failed to provide you with appropriate medical treatment.
Breach of duty of care
In order to show that there has been a breach of duty of care, it is necessary to show that the investigation or treatment fell below the standard of a reasonably competent Doctor in the relevant field.
The Doctor will be able to defend the claim if he can show that a responsible body of reputable Doctors in the relevant field would have carried out the treatment in the same way that he did.
This means that, for example, in a case of alleged surgical negligence, a Doctor will be able to defend a claim if there is a responsible body of other Doctors who would confirm that they would have performed the surgery in exactly the same way as the Defendant did, even if the same injury would have resulted.
Causation of injury
If a breach of duty can be proved, it is necessary to show that the breach either directly caused the injuries or materially contributed to the injuries.
This is very often the most difficult part of the claim to establish. It is often the case that the patient would have sustained the injury and been in the same position in any event because of the underlying medical condition.
What has to be established is what the position would have been “but for” the Doctor's negligence.
As an example, it would not be possible to establish that damages should be paid in the following circumstances:-
“A patient turned up at Hospital with stomach pains. The Doctor refused to see him and told him to see his General Practitioner in the morning. The patient left Hospital and died during the night from poisoning. The medical evidence showed that the patient would have died in any event, even if the Hospital Doctor had admitted him, diagnosed his condition and treated him immediately”.
Whilst the Hospital Doctor owed the patient a duty of care and was clearly in breach of his duty of care in failing to admit the patient, the breach of duty did not cause the patient to suffer an injury, as he would have died in any event. It is often the case that you can prove breach of duty of care on the part of the Doctor, but without being able to prove causation of injury.
Please remember that it is our role as specialist solicitors to help you prove whether the doctor's fault did cause the injury. You should be careful of making an assumption yourself.
Burden of proof
The burden of proof is on the Claimant. It is for you to prove your case to the Defendant and ultimately to a Judge.
Standard of proof
The test for assessing causation of injury is “on the balance of probabilities” (ie more likely than not). This is a much less rigorous standard of proof than that used in the criminal courts, which is “beyond reasonable doubt”, and amounts effectively to certainty.
Initial Investigation
Before commencing any Court proceedings, it will be necessary to fully investigate the claim. This is a lengthy process and may take up to twelve months or more.
During this period the Solicitor will obtain your medical records and instruct a medical expert to report on whether there is any evidence of a breach of duty of care, ie “negligent” treatment. By this, we mean treatment falling below the standard which you as a patient have a right to expect from a reasonably competent Doctor. In some cases it may be necessary to instruct more than one expert. Where the report indicates that there is evidence of “negligence”, further reports will be obtained dealing with the injuries which were caused as a result of that treatment and also dealing with your present condition and prognosis.
If and when it is necessary for you to be examined by one or more medical experts, it may be necessary for you to travel to see the experts. It is rarely our practice to instruct a local expert if you are investigating a claim against a local GP, Health Authority or NHS Trust and therefore, for example, you may have to travel to London, the Midlands or the North of England. In exceptional circumstances, it may be possible for the expert to travel to see you where your continued ill health does not permit you to travel.
The Solicitor will also need to take a very detailed statement from you to deal with all the relevant issues. It may be necessary to take statements from other family members and friends and any other relevant witnesses.
If you are successful in establishing negligence in your treatment, and that the negligence caused or materially contributed to your injuries, then you will be entitled to claim damages (also known as compensation).
At the early stage, the investigation of your claim will be concentrating on establishing whether you have a claim against the Defendant. If a claim can be established, then it will be necessary to investigate the potential value of your claim in detail.
Once all the medical reports and other evidence is obtained, and possibly after a meeting with a Barrister and the experts, it will be necessary to approach the Defendant's Solicitors and to send them what is called a “Letter of Claim”. This will be a very detailed letter which will set out all aspects of your claim and, in particular, advise them in some detail of the exact allegations of negligence which are being pursued and the injuries which are said to have been caused by the negligence.
The Defendant will have 3 months in which to provide a detailed reply to the Letter of Claim. It is hoped that by going through this process it will lead to the Defendant admitting liability in all cases save for those where they genuinely believe the claim can be defended. Unfortunately, that will not always be the case and some Defendants are likely to continue to defend claims inappropriately for some time.
If the Defendant does not admit liability and agree to pay damages then it will be necessary for Court proceedings to be commenced.
Commencing Court proceedings
The Solicitor will, with the help of the Barrister, prepare the necessary papers and these will be issued at Court and then served on the Defendant.
The Defendant will have the opportunity to admit liability at this stage and to make an offer to settle your claim. If they do not accept responsibility, both sides will then prepare the case for trial. This can be a very lengthy process and it may take a year or more.
As the case proceeds, there will be an exchange of witness statements and experts' reports. This will enable your Solicitor to be fully aware of the basis of the Defendant's case and to further assess the strengths and weaknesses of your claim. If your Solicitor still believes that you have a strong claim, then he will take steps to arrange for a final hearing, at which a Judge will decide whether the Defendant was negligent and whether you are entitled to recover damages.
The Defendant can offer to settle the matter at any stage during this period and most claims are settled after proceedings have been commenced and before the final hearing.