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Turning Law into Justice

Clinical negligence

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The doctor/patient relationship extends to institutional healthcare providers such as Health Authorities and National Health Services Trust Hospitals, GP?s, dentists and private clinics. The relationship establishes a duty of care in respect of actions or omissions of all those concerned. In certain circumstances the duty extends beyond the individual or individual staff member to a provider unit, i.e. the Hospital Trust or Health Authority itself if there is a failure of a system of healthcare provision as opposed to an individual doctors act or omission.


These duties materialise at what is called common law and raise issues of liability in respect of the law of tort and in particular negligence. On occasions in the private sector there may be additional or parallel liabilities arising out of the law of contract.




Negligence may be described as the omission to do something which a reasonable man guided upon those considerations which ordinarily regulates the conduct of human affairs, would do, or in doing something which a prudent and reasonable man would not do. In this regard there can be no doubt that the requisite standard of care must be determined by a legal standard framed by the Courts and not by the medical profession. However, the medical profession has great influence in the setting of that standard. The standard of care in a clinical negligence case is well established in the leading case or Bolam -v- Friern Hospital Management Committee. It is known as the Bolam Test which is:


A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art?.?


In other words, a doctor is not negligent if he is acting in accordance with the practice merely because there is a body of opinion that takes a contrary view. The law accepts that minority views are acceptable provided they are held as acceptable by a reasonable body of medical men.


In order for the practice to be reasonable the Courts have determined that it needs to be subject to a logical analysis test. This is known as the Bolitho gloss on the normal standard.


The standard of the care of the ordinary doctor in a particular field is a standard which is assessed objectively and which should pay no regard to the frailties idiosyncrasies or weakness of the doctor himself to the extent that unacceptable inexperience is no defence to a claim.




The legal burden of proof in all clinical negligence cases lies on the Claimant. The standard of proof required to discharge that burden is on a balance of probabilities, i.e. more likely than not. It is clear that if compliance with a properly accepted practice defeats any claim of negligence expert evidence in support of an allegation of unacceptable standard of care is essential.


Causation of damage


If one is able to satisfy a Court that there was a breach of duty of care in accordance with the Bolam principle, then one has to also prove that the breach complained of actually caused or materially contributed to the injury, the subject of the complaint. The burden of proving such causation also rests firmly on the shoulders of the Claimant and again, on a balance of probabilities. The test generally accepted by the Courts is commonly called the but for test, i.e. but for the substandard care would the harm to the Claimant have occurred in any event.


Injuries and losses


If one obtains evidence in relation to breach and causation further evidence is then required to establish the value of the claim. In general terms the Claimant is entitled to be put in a position that they would have been in had the incident of negligence not occurred.



This Note is issued for general guidance only.  Please contact us for detailed advice before taking final action.  For further information, please call the Member whom you normally liaise with.

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