Legal Test for Medical Negligence
To bring a medical negligence claim you must show four things: a duty of care was owed, the care fell below a reasonable standard, that failing caused avoidable harm, and the harm has a value the law can compensate. All four must be more likely than not. If one is missing, the claim will not succeed.
The four elements
Duty of care - Was someone legally responsible for taking reasonable care of you? In healthcare this is almost never in dispute.
Breach of duty - Did the care fall below the standard of a reasonably competent professional in that field?
Causation - Did that failing actually change the outcome, or make things materially worse?
Harm and loss - Is there an injury or financial loss the law recognises and can value?
Breach: was the care below standard?
The standard is not perfection, and it is not the best care possible. It is the standard of a reasonably competent professional in that specialty.
Under the Bolam test (Bolam v Friern Hospital Management Committee [1957]), a clinician is not negligent if a responsible body of professionals would accept what they did as proper, even if others would have done it differently.
Two things follow:
A different decision is not a wrong decision. Medicine often has more than one acceptable route.
Hindsight is not the measure. Care is judged on what was known at the time.
Consent works differently
Since Montgomery v Lanarkshire Health Board [2015], what you should have been told is judged from the patient's point of view, not the profession's. You must be made aware of any material risk, one a reasonable person in your position would attach significance to and of reasonable alternatives, including doing nothing.
Causation: did it change the outcome?
This is where most claims are won or lost. Proving poor care is not enough, you must show it made a difference.
The usual question is: but for the negligence, would the harm have been avoided or reduced? If the same result would probably have followed anyway, causation fails however poor the care was.
That is why delayed diagnosis claims turn less on the delay itself and more on what earlier treatment would have achieved. Where several causes are tangled together and cannot be separated, the law may allow a claim on the basis that the negligence made a material contribution but evidence is still needed that it genuinely played a part.
Harm: what can be compensated?
Compensation is designed to put you back, as far as money can, in the position you would have been in. It is not a fine on the hospital.
Damages fall into two parts:
General damages - for the injury itself and its effect on your life.
Special damages - for financial losses: lost earnings, care and support, treatment, equipment, adaptations and future costs.