August 09, 2022

What is Duty Of Care in Medical Negligence?

In medical practice, a doctor or other medical practitioner is legally bound to treat patients with the appropriate medical standard of care. This means that when treating a patient, there is a degree of care and skill expected of a competent doctor or other healthcare provider in the same medical field which must be provided to the patient.

When the doctor fails to provide this accepted standard of care, the doctor may be seen as being negligent. However, a number of other factors come into play before it can be established that medical negligence has occurred.

Duty Of Care Definition

A duty of care can be defined as the duty or obligation laid on medical professionals to provide their patients care at the level and standard expected of any competent medical professional. What this implies is that, when performing the same procedure, it is expected that a newly qualified GP would also provide the same standard of care as someone who is more experienced.

A breach of duty negligence can be said to have occurred when the healthcare provider fails in that duty by providing substandard care which then causes the patient to sustain an injury, suffer harm, or complication that would have been avoided if the level of care expected was provided.

When this happens, you may have grounds to make a medical negligence claim. Our NHS negligence solicitors are well experienced in matters as this and will make a thorough evaluation of the situation to determine if a claim can be made and if you have a strong claim, will proceed to undertake your claim on a no win no fee basis.

The following can be considered as Duty of care negligence;

  • Making wrong diagnosis
  • Missed diagnosis
  • Delayed diagnosis
  • Failing to communicate effectively with the patient about a treatment procedure and obtaining an informed consent
  • Incorrect treatment or mistakes in prescriptions
  • Delayed treatment
  • Failing to carry out appropriate tests
  • Delays in making appropriate referral to a specialist
  • Surgical errors including “never events”

Burden Of Proof In Negligence

This is a very important aspect in proving duty of care negligence cases. While you have to show the existence of a doctor-patient relationship, burden of proof sometimes referred to as the “balance of probability”, aims to show that it is the action or inaction of the doctor that caused you harm.

This essentially means that it must be established that it is more likely than not that the actions of your doctor was a breach of their duty of care to you, and that it is also more likely than not that this breach caused harm to you. Therefore, on a percentage, you must show that there is at least a 51% chance that the medical practitioner you are suing was at fault for your suffering.

Therefore, in proving your medical negligence case, the following elements must be established;

  • Duty- that there existed a doctor-patient relationship in which he owed you a duty of care
  • Deviation- that the doctor breached the duty of care
  • Direct Causation- that breach of duty or negligence caused you to suffer avoidable harm or injury

Two tests are essential in cases of duty of care medical negligence.

There are the;

  • The ‘But For’ Test
  • The ‘Material Contribution’ Test

The ‘But For’ Test

The ‘but for’ test is the standard test for proving causation. Here, the question is “but for the existence of the doctor’s negligence, would the injury to the claimant have occurred?”

Therefore, the claimant has to prove that but for the poor care received, the injury would not have occurred. If the injury or harm would still have occurred even if there was no negligence, the claim will fail.

Therefore, the existence of medical negligence doesn’t automatically mean the case will be successful. It must be shown that the injury wouldn’t have happened if the medical practitioner hadn’t been negligent.

The ‘Material Contribution’ Test

This test comes in handy in complex cases where there may be multiple causes of the injury. In this case, the ‘but for’ test cannot be applied.

The ‘material contribution’ seeks to know if the alleged negligence contributed to the injury and if it indeed contributed to the injury, was the contribution significant? In other words, was it ‘material?’

Documents which are important in proving your claim include the following;

Your Medical records: This will show what medical issue you sought treatment for, and what type of treatment was administered to you.

Doctor’s Records: Records of your appointments with your GP or a specialist are also very important. This can be particularly essential where you need follow up care to the initial medical issue.

A Medical Assessment: When making a medical negligence claim, your medical negligence solicitors will most likely ask an independent medical expert to perform some medical examination on you to determine the state of your health. The findings made will be reported and used during the medical claims process.

Other documents include

  • Witness statements which can come from a family member or close friend
  • Pictures or images where necessary
  • Accident report forms in the case of a road or industrial accident
  • Security camera footage
  • Financial records that show losses incurred as a result of the injury, out of pocket expenses as well as future estimated losses. This will be needed while calculating a favorable compensation amount.

Average Medical Negligence Settlement in the UK

In the UK, the average medical negligence settlement amount is £50,000. However, compensation amounts can range from £1,000 to several millions of pounds depending on the underlisted factors.

  • Type and location of injury
  • Severity of the injury
  • Impacts and damages caused by the injury
  • Financial losses (including past, present and estimated future losses)
  • Future prognosis
  • Travel expenses medical appointments and fees
  • Rehabilitation costs including mobility aids, assistive devices and the costs of replacements
  • Cost of hiring caregivers
  • Accommodation adjustment costs where you have to modify or entirely change your apartment to suit present conditions.

No Win No Fee Medical Negligence

Do you have a hospital negligence claim to make? Then you can speak to the right medical negligence experts by reaching out to us via our helplines or by filling out on online free enquiry forms.

Our medical negligence solicitors are well vast in different medical negligence claims and have a track record of success having helped several clients over the years to secure deserving compensation amounts.

During our free consultation sessions, we discuss extensively on the circumstances surrounding your claim and listen to you tell your story while we make a professional evaluation to ensure that you do have strong grounds for a claim.

We will also help you fund your claim through our No Win No Fee policy. The policy means that you do not have to put off seeking justice because you do not have the funds to make a claim. An insurance cover will also be taken on your behalf so you don’t have to worry about incurring any debt even if the case wasn’t successful.

At the end of a successful claim however, we will deduct no more than 25% of your settlement payout as success fee.

Do not hesitate to make your claim as you have limited time to make a medical negligence claim, Contact us today.

No Win No Fee Medical Negligence Solicitors

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