Proving a Claim
To succeed with a clinical negligence claim you must satisfy, with the benefit of independent medical expert opinion, two tests. Failure to satisfy one of these tests will mean that you cannot proceed with your claim. The two tests are as follows:
Breach of duty - was the care that you received below a reasonable standard of care?
You should note that the test is not that you should have received the highest standard of care but only a reasonable standard. The strict legal test is that the care you received fell below the standard to be expected of a reasonably competent and skillful specialist in the particular field in which the treatment was given.
Even if a number of clinicians are of the view that a particular practice is substandard, if there is another reasonable and responsible body of medical opinion in the field (even a minority) who would consider that the treatment given was reasonable the claim will fail. Establishing breach of duty is rarely a straightforward exercise because there is often more than one opinion on what treatment is within a reasonable standard.
Causation - what injury and loss has been caused by any breach of duty?
The second part of the legal test in proving a clinical negligence claim requires that some quantifiable loss or damage has been suffered as a consequence of any breach of duty. In other words it is necessary to consider what the outcome of the treatment would probably have been, if there had not been substandard care, and to show that the actual outcome has been worse.
Our clinical negligence solicitors frequently have cases where it can be shown that the care was substandard but it cannot be proved that any damage has been caused by that substandard treatment. In these circumstances, the claim will fail as the second legal test for a clinical negligence claim has not been satisfied.
In some cases the effect of the substandard treatment is minimal and it is then uneconomic for the claim to proceed.
For more information on proving a clinical negligence claim contact the Clinical Negligence Team today.