Every clinical negligence case is made up of three definite elements. These elements have to be met and satisfied before you do anything else. Before you value your claim, before you consider issuing at Court, before you already send the Letter of Claim, you must be confident that your claim will meet these three elements.
The reason being that if your claim does not meet and satisfy these elements, your claim will not be successful. It was laid down by law that for a Defendant to be found guilty of negligence and have to pay out compensation these three elements must be proven.
In this article, we will be explaining these elements, so that you can have a better understanding of your claim.
What Are the Three Elements You Need to Prove
Definition: Clamant – person bringing the claim
For a claim to be successful, the Claimant needs to show that:
One: That the medical specialized owed them a duty of care. This is not a challenge to prove in clinical negligence claims as it is accepted that medical professionals owe their patients a duty of care just by their relationship alone.
Definition: Balance of probabilities – that it was more probable than not that the Defendant acted negligently.
Two: the medical specialized must have behaved in such a way as to breach their duty of care. This is harder to prove, and the duty is on the Claimant to satisfy the legal test. The legal test being, that on the ‘balance of probabilities’ the medical specialized’s actions or failure to act fell below the standard that would be expected of a reasonably competent and experienced member of medical staff.
This is usually proven by obtaining a medical report from an experienced specialized who will say whether or not the Claimant’s treating medical specialized acted in such a way so as to be considered negligent.
Three: that the breach caused, or materially contributed to, the Claimant’s injury or loss.
Those are the three elements that must be proven in Court for a claim to be successful. This is the legal test that all claims must pass.
It is not enough that only one or two of these elements be met, all must be met. So, if a doctor was negligent and did not diagnose a patient when they should have done from the evidence, or did not carry out adequate tests which would have allowed a diagnosis, then they will be deemed negligent. However, if the patient’s outlook/prognosis and/or treatment would have been the same already if a diagnosis had been made earlier, then the claim will fail because the third component has not been met.
It is not enough for a medical specialized to be negligent the Claimant must have suffered as a consequence.
component One: Duty Of Care
All medical practitioners owe their patients a duty of care. This component will always be satisfied if you are claiming against a medical specialized who was treating you.
component Two: The Duty of Care was Breached
To be successful, you will need to prove that the care you received from your medical specialized fell below the standard that you would reasonably expect from a qualified medical practitioner.
However, you need to keep in mind that just because you are not happy with the consequence of your treatment or you were not warned about all the possible risks relating to your treatment, that doesn’t always average that the doctor was negligent.
For the doctor to be considered negligent, you need to show that a meaningful number of respected doctors would have carried out your treatment differently or to a higher standard.
A solicitor will do this by instructing a medical expert. That medical expert will review your medical notes and see you for an assessment/appointment. They will then produce a report detailing their opinion on whether your treating doctor fell below the standard and consequently breached their duty of care to you.
component Three: You suffered as A consequence of The Negligence
To be successful at Court, you must prove that, because of the negligence, you suffered an injury, or a worsening of your symptoms, or a prolonging of your symptoms.
The medical treatment does not have to be the only cause of your current condition, but it must have materially contributed to it. Meaning it must have been considerably (over 50%) responsible.
As an example, for the late diagnosis of illness, you will need to show that if the disease had been diagnosed at an earlier stage then either your treatment would have been less invasive, your survival risk would be considerably higher, and/or any long-lasting disability would not have occurred.
Example: a GP sees a patient with numb toes after a nasty knock, but does not test the foot pulses or diagnose artery damage and/or does not send the patient to a vascular specialist. The patient is later diagnosed with vascular injury and the death of the toes due to without of blood supply. The patient then has to have the toes amputated.
To bring a successful claim for clinical negligence, the Claimant has to prove that early diagnosis would have meant either keeping some or all of the toes, and/or not having to undergo surgery and/or not now running the risk of further amputations in the future due to damaged arteries.
While the fact that you have suffered as a consequence of the negligence might not sound overly difficult to prove, it is usually the most difficult part of the claim. A lot of Claimant’s bringing claims for Clinical Negligence were already experiencing an illness or injury and separating out what they suffered because of the negligence and what they would have suffered due to their original injury or illness is very difficult and often involves a lot of “what, if’s”.
Again, a legal specialized would usually instruct a medical expert who could say that on the ‘balance of probabilities’ if the correct treatment had been given the claimant would have had a more agreeable outcome.
In conclusion, you must satisfy three elements for your claim to be successful. You need to prove that the doctor owed you a duty of care, this is commonly accepted so proving this is straight forward. Secondly, you need to show that the physician breached that duty by not taking due care and attention or behaving carelessly while treating you. Thirdly, that the breach of duty has caused you an injury.