How Negligent Does My Doctor Have To Be?

Duty of Care

Many of those who have suffered from poor medical treatment do not properly understand which elements must be present in order for a medical negligence claim to succeed. It is not enough simply for the doctor or medical professional to have had a duty of care relating to the patient he was treating. It must also be proved that he breached that duty of care according to the legal standard.

Burden And Standard Of Proof

The first thing to understand is that the burden of proof in this area of medical negligence is on the claimant. This means that the doctor or medical professional concerned does not have to prove that they were not negligent. It is up to you to prove that they were. As clinical negligence claims are a subsection of civil law, the standard of proof which must be met is, in almost all circumstances, the ‘balance of probabilities’.

The Bolman and Bolitho Tests

Since 1957, the main standard of care in medical negligence claims has been defined by the case of Bolman v Friern Hospital Management Committee. This laid down the ‘Bolman test’, which states that the standard of care expected in such cases is that of the reasonably competent doctor in the field of medicine concerned. In other words, your doctor must have been following a course of action which another competent doctor would reasonably have taken. This means that if there were several ways of doing things, taking one of those options rather than the other is not negligent, even if the action did lead to harm. More recently, however, the ‘Bolitho test’ has clarified that the medical opinion does need to be logically defensible. In other words, if your doctor was doing something clearly incompetent, merely because other doctors would have done the same, you are still able to sue in negligence.

Causation

However negligent your doctor may have been, it is also important not to forget that the negligence has to have had a causative effect on the injury suffered. In other words, if your doctor was negligent but your injury actually resulted from another cause altogether, you will be unable to claim. The most famous case illustrating this principle is Barnett v Chelsea Hospital, in which a patient was brought in to a hospital and the doctor failed to diagnose his condition. The patient died of arsenic poisoning, but it was later proved that he would have died whether the doctor was present or not. Since the doctor’s negligence had made no difference to the death, he could not be sued. Always remember that you must be able to prove all of the elements of a negligence claim, or you will be unable to succeed.

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