Doctors and other medical practitioners usually provide a high level of service to their patients. Unfortunately, on occasion mistakes do happen and in these situations patients will be quite emotional and upset. The potential risks involved in medical treatment may be forgotten; however the patient will be entitled to an explanation.
A case of clinical negligence is when it can be proven by the patient that the treatment provided by the doctor or other medical practitioner was sub-standard and this resulted in a mental or physical injury. Various procedures have been reported to have gone wrong over the years, such as objects being left behind in the patient and non-communication between the patient and doctor on certain risks that could be involved in the treatment.
According to the statistics, around two people a week find surgeons have left behind foreign objects such as clips and screws, and surgical swabs. In the past year alone, the highest payouts included 115,000 to a person who had the tip of a needle left inside them, 75,000 to a patient who later found a surgical clip, and 60,000 to someone who still had 'packaging material' inside them after an operation.
Liability for medical negligence can apply to a range of medical professionals, these include:
- GP's
- Privately funded health practitioners
- Dentists
- All NHS medical staff and hospitals
- Privately funded hospitals
What is the Duty of Care?
Medical practitioners owe their patients a duty of care, however in some cases they fail to do so. If the patient can prove that the treatment they received was below standard, they should be able to bring forward a claim. The method of treatment they received will be compared to other medical practitioners working in the same field.
It is expected that the medical practitioner should take personal accountability for keeping up to date with current developments in healthcare, and that this will be questioned when an error is made. The assessments will be made in accordance with the current medical trends prevailing at the time of the Incident. It is essential that in order for the patient's claim to be successful, it will have to be shown that the medical practitioner in charge of the patient contributed substantially to the patient's injury. Quite often medical cases can be complex, with the patient suffering from a variety of different illnesses. Therefore it will need to be proven that the damage caused by the medical practitioner was separate to the patient's underlying condition.
As the area of clinical negligence is highly complex, it can be difficult to establish whether it was the doctor's error that substantially contributed to the damage suffered. Thus, the patient will have to prove that the medical practitioner's error was an isolated incident that contributed to the damage or injury caused to the patient.
A major point of authority in deciding whether medical negligence has occurred was outlined in the famous case of Bolam v Friern Hospital Management Committee. In this case it was held that 'the test as to whether there has been negligence or notis the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular Art'. This case outlined that if the medical practitioner can find another medical peer that would have also followed the same method of treatment, then they should be able to establish a defence.
Expert medical witnesses will need to provide evidence that they would endorse the same method of treatment, and this would thus fill the requirement outlined in the Bolam case. Commentators have argued, however, that there are many problems with this as often, there can be more than one way to treat a condition, and either method can be acceptable. However, once a recognised body of medical practice has proven that they would endorse the same method of treatment, it is unlikely that the doctor will be found in breach of his duty of care.
