A brief legal guide to clinical negligence, including details of where you can go for further information or support.
What is clinical negligence?
This briefing explains the law relating to clinical negligence and explains how an individual can take legal proceedings. Complaint procedures are dealt with in complaining about health and social care.
The only outcome for a claimant that brings a successful clinical negligence claim is an award of damages. The Court cannot force a hospital to change its working practices or improve standards, it cannot discipline a health professional nor can it make a health professional apologise.
Negligence is the breach of a legal duty of care owed to one person by another which results in damage being caused to that person. Clinical negligence (often called medical negligence) is concerned with claims against doctors and other healthcare professionals and their employers. In order to succeed in a claim for negligence, the claimant needs to prove that:
- The doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury;
- There was a breach of that duty to take care;
- That breach of duty has caused harm to the claimant; and
- Damage or other losses have resulted from that harm.
These four elements will be analysed in turn.
2. Duty of care
Generally speaking there is little difficulty in proving that the doctor or medical team who are responsible for treating a patient owe the patient a duty to take care of him or her. This also applies to other healthcare professionals such as nurses, therapists, laboratory workers, physiotherapists, mental health care teams and the ambulance service – this list is not exhaustive.
3. Breach of duty
It is necessary to show that whatever the doctor did or did not do fell below the standard of a reasonably competent doctor in that particular field of medicine. The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to meet the standard of a reasonable body of other practitioners also skilled in that field. This is known as the “Bolam test”. More recently, the court has stated that where a body of medical opinion is relied on to show that a particular doctor was not negligent it is also necessary to show that such medical opinion itself is logical and reasonable. In other words, it is not enough that there is a body of opinion supporting the doctor; the body of opinion itself must be reasonable.
The duty on the doctor to act in a way that is reasonable applies whether the matter concerns treatment, diagnosis or advice.
In some cases, particularly in private healthcare, a patient may have a contract with a doctor in respect of his or her treatment. In the absence of any specific provisions, the standard of care is the same as that described above. However, it should be noted that if a doctor guarantees a particular result then, if the doctor fails to produce that result, the doctor may be in breach of contract even if he or she has not in fact been negligent.
Sometimes the only explanation is that there has been negligence. An example would be where a surgeon amputated the wrong leg. In these sorts of cases there is a presumption that the doctor was negligent and it is then up to him or her to prove otherwise.
In addition to proving that the doctor has failed to meet the relevant standard of care, the claimant also has to establish that this failure either directly caused the injuries alleged or significantly contributed to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong but this failure cannot be shown to have caused the patient’s injuries. For example, a patient may be able to show that a psychiatrist’s diagnosis was wrong, but it is much harder to show that this has contributed to his or her existing mental distress. In some cases there has been a clear breach of duty, but no damage has resulted at all. Again, in this case, no compensation would be payable.
It may sometimes be the case that the treating medical professional or their employer will admit that there has been a breach of duty. However this is not enough to say that that person or employer is liable for any damages. In order to establish liability it must be shown that the breach of duty caused the damage.
A claimant who is able to prove breach of duty and causation then needs to establish that he or she has suffered damage for which a claim can be made. Damage includes physical injury and psychiatric injury, as well as financial loss such as loss of earnings and future healthcare provision. Psychiatric injury is the legal term used by the court. It must be a recognised psychiatric injury, such as post-traumatic stress disorder (nervous shock), anxiety disorder or adjustment disorder. Grief or emotional upset are not injuries for which damages can be awarded.
The court tries to put the claimant into the position he or she would have been in if the negligent act had not occurred. Where physical injury or psychiatric injury has occurred, the court will determine the pecuniary value to be given to the injuries in accordance with previously decided cases.
However, not all losses are recoverable. A court will only award damages for losses which are not too “remote”, in other words, which are reasonably foreseeable. For example, if someone is wrongly diagnosed as suffering from schizophrenia and, as a result, is refused a visa for a particular country, he may not be allowed to claim damages for the loss of any business he was hoping to do in that country.
Compensation for any psychiatric or physical injury will include an award for the pain and suffering and “loss of amenity” (or the benefit and enjoyment of life which the claimant has lost). These are known as “general damages”. The court will also award a sum for any past and future financial losses that have been caused by the negligence. This will include lost earnings and the costs of care, aids and equipment (“special damages”).
It should be noted that awards of general damages can be very low. Where damages are very high most of the money will usually have been awarded for future loss rather than for the actual injury itself. For example, where a serious brain injury has occurred, the costs of future care and lost earnings will make up most of the award.
6. Burden of proof
The burden of proving negligence is on the claimant. The standard of proof is a “balance of probabilities”. This means that the question that will be asked is: is it more likely than not that the defendant was negligent?
7. Examples of clinical negligence
Clinical negligence includes negligence in relation to surgery, medication, diagnosis, delay in treatment, psychiatric care, psychotherapy, counselling, dentistry and childbirth (including damage to the unborn child). It can also include things that have not been done that should have been done, such as not giving a person the treatment they need, or failing to warn about the risks of a proposed treatment.
It does not matter what kind of treatment is undertaken; if all the elements set out above are present, there is a potential claim for damages.
8. Liability of hospitals and doctors
Doctors and other healthcare professionals may be liable directly for their own negligent treatment. In addition, their employers, usually NHS Trusts, Primary Care Trusts or private hospitals, may be “vicariously” liable for the negligence of their staff.
A GP is liable for his or her own acts, for the acts of his or her employees and, arguably, for anyone else s/he employs to look after patients such as nurses. The General Medical Council requires that all doctors have adequate insurance cover.
If the negligent healthcare professional was a health service employee, such as a hospital doctor, then it would be the Health Authority or Trust that would be liable. If a claim is successful it will be the hospital that pays the damages. Doctors, nurses and other health care staff in the NHS are covered by the NHS Indemnity, which means their employer is responsible for any clinical negligence claims.
Hospitals may also be directly liable where, for example, they have failed to adequately supervise or train their doctors and nurses or where hygiene standards have not been maintained properly.
A clinic or private hospital will take out its own insurance. It will employ staff such as doctors, nurses and administrative staff. The medical staff using the facilities of the clinic will be independent contractors, and therefore, any claim should be against them as individuals. In almost all cases it will be the individual doctor that is sued. As stated above, insurance will be required by the relevant professional organisation.
Often, at the beginning of the investigations it will not be clear who was negligent. However, by the end of the investigations it should be apparent which person or persons were negligent, and therefore, who should be sued. However, sometimes this can be difficult to establish. This may be due to a lack of time to investigate fully the claim, or if it appears that there has been negligence by more than one individual. If this situation arises then a claim should be brought against all those involved to protect the claimant’s position.
9. Bringing legal proceedings
Before legal proceedings are started a letter of claim setting out the allegations of negligence and the damages suffered needs to be sent to the potential defendants in accordance with the court procedure rules. Expert advice from solicitors specialising in this area of the law should be obtained before proceedings are commenced. The Law Society’s Clinical Negligence Panel lists solicitors who are able to undertake this work. You can search for a solicitor specialising in clinical negligence on the Law Society website.
Law centres, citizen’s advice bureaux and voluntary organisations such as Action against Medical Accidents (AvMA) also keep lists of solicitors dealing with this area of the law.
10. Difficulties in pursuing a claim
As well as the need to prove, on a balance of probabilities, each of the individual elements of negligence as discussed above, there are a number of other difficulties involved in bringing a claim to court. The most important are the rules governing limitation of actions (this is the legal term for time limits), the costs involved in legal proceedings and the unavailability of legal aid for the majority of clinical negligence cases.
- Limitation of Actions: time limits for bringing a clinical negligence claim
The time limit for bringing legal proceedings for clinical negligence resulting in physical or psychiatric injury is three years, although this can be extended under certain exceptional circumstances. The time runs from the date of the negligence or from the date that the injured person has knowledge of certain factors which make up the claim. These are set out in the Limitation Act 1980. The three-year limit does not apply in specific circumstances. For children, time starts to run from their eighteenth birthday. For those unable to administer their affairs by reason of mental disorder or lack of capacity, time does not begin to run until they regain capacity. In addition, the court has a general discretion to allow a claim to proceed even if the time limit has expired, although it will only do this if there are good reasons for the delay.
Whenever possible it is always best to approach a solicitor long before the end of the three year period. This will give the solicitor time to investigate the potential claim and prepare the case fully before the claim must be issued. Also, the sooner the claim is investigated the more likely it is that documents will still exist, and that those involved will be able to remember more accurately what actually happened.
- Legal aid
Legal aid is no longer available for most clinical negligence claims, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force on 1 April 2013. From 1 April 2013 onwards legal aid will only be available in clinical negligence cases where a child suffers a neurological injury resulting in them being severely disabled during pregnancy, child birth or the postnatal period (8 weeks).
The legal costs of taking proceedings for clinical negligence can be prohibitive and a careful judgement needs to be made before proceedings are started. Advice should be taken on the merits of a claim and the likelihood of a successful outcome. New rules of court procedure mean that failure to comply with pre-action protocols and attempts to settle may be penalised by costs being awarded against the offending party.
(1) Conditional Fee Agreement
Claims may also be taken on a conditional fee agreement (CFA) basis or “no win no fee” basis. This means that if the case is not successful a claimant does not have to pay his or her solicitor’s fees. However, because these claims are so complex it is unlikely that a solicitor will take on a case on a CFA unless there is fairly strong evidence that the case will be successful, such as experts’ reports that support the case. Obtaining such reports can be very expensive and will need to be paid for “up front”. This means that several thousands pounds might be spent before a solicitor agrees to enter into a CFA. It could also be the case that the evidence does not support the claim, and therefore, the solicitor will not take on the case. The money that has been spent to obtain the evidence is not recoverable. If a case is taken on then insurance will have to be obtained to insure against the other side’s costs if the case is lost. This insurance can be expensive to obtain. CFAs may also be more difficult to obtain now that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has come into force (on 1 April 2013). This Act removes the possibility of a success fee for the lawyers when a case is won on a CFA. This means that lawyers take on the risk for lawyers of taking on a clinical negligence case on a CFA is even greater.
(2) Legal expenses insurance
An individual should always check any insurance polices they have, such as house insurance or car insurance to see if the policy covers personal injury claims. Some policies will cover such claims up to a set limit.
(3) Trade union help
If an individual is a member of a trade union, or other similar organisation, it may be able to help with the legal costs.
- Length of time to resolve claims
Legal proceedings can also take a considerable time to be resolved. Six years for the resolution of a High Court claim is not uncommon.
11. Complaints procedures
There are a number of ways of seeking redress other than through the courts. In some cases a patient may not require financial compensation but would prefer an apology or an explanation as to why something went wrong. Very often making use of the various complaints procedures is a useful prelude to commencing legal proceedings. However, it should be noted that neither the NHS nor the Health Service Commissioner (the Ombudsman) will investigate a complaint if legal proceedings have been commenced. Further details of these complaints procedures can be found in complaining about health and social care.
12. Further information
This legal briefing attempts to outline the key concepts of clinical negligence. It is not a substitute for legal advice in any particular case.
For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in clinical negligence. Details of where to seek specialist advice can be obtained from the Law Society. Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Mind Legal Unit