As in all areas of law, the basis of medical negligence litigation is to be found in a series of foundational cases, which set the principles by which the courts determine your claim. Whilst there are a great many of these cases, the most important can be split into three categories.
Breach Of Duty
There can be no viable medical negligence claim if there was no breach of a duty of care. The definition of what constitutes a breach can be found in Bolam v Friern Hospital Management Committee . This case set the standard of care as that of the ordinary skilled doctor, and defined its breach as being doing something that no medical practitioner using due care would do. This definition was restated by the House of Lords in Whitehouse v Jordan , where it was confirmed that a medical professional acting in agreement with a ‘responsible body of medical opinion’ cannot be negligent. This has been slightly altered by the judgment in Bolitho v City and Hackney Health Authority , which conceded that if the ‘responsible body of medical opinion’ was demonstrably illogical, negligence could still take place through following it.
Proof Of Negligence
Even if breach of duty may have occurred, the burden of proof is on the claimant. This means that you must be able to prove negligence in order for your claim to succeed. Sometimes this can be difficult, due to not knowing the facts of what happened. Indeed, no one may be quite sure what occurred. In these circumstances, Cassidy v Ministry of Health  makes it clear that claimants can rely on the doctrine of ‘res ipsa loquitur’. In short, this means that if it is clear that something went wrong, and that it could only have occurred through negligence, then negligence will be considered by the court to have been proved. It is then up to the defendants to rebut the allegation of negligence, and not for the claimant to prove it.
Proving that the breach of duty actually caused the harm or injury for which you are seeking compensation can be difficult in medical negligence cases. Science may simply not be able to identify the precise cause of the damage. In such an event, Wilsher v Essex Area Health Authority  tells the court that the onus of proving harm falls upon the claimant. If there were many different potential causes and it is not possible to tell if the negligence was the ‘guilty’ cause, then your claim may fail. However, Bailey v Ministry of Defence  makes it clear that if negligent treatment leads to a later (identifiable) incident of harm, then the negligent treatment can still be considered the cause of damage.
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