What is needed to prove medical negligence?
In order to prove medical negligence and get compensation, you need to prove that the doctor, hospital or other medical professional provided you with substandard treatment (i.e. breached their duty of care to you) which caused you an injury. You do not need to prove that this definitely happened, just that it is more likely than not that it did. In order to succeed in any medical negligence claim, there are therefore 2 hurdles we have to get over:
1. Breach of duty
We will need to prove that the doctor (or dentist, nurse etc.) breached their duty of care to you by providing treatment which was not up to an acceptable standard.
The legal test states that:
“A doctor is not guilty of negligence if he has acted in accordance with a practice as accepted as proper by a responsible body of medical men skilled in that particular art.”
What this means is that we need to prove that the treatment provided to you was substandard and that no reasonable doctor would have acted in that way.
It is not enough to just prove that the doctor’s treatment was substandard. We also need to prove that you were injured as a result of this treatment. If you have not been injured as a result, the claim will fail and you will not get any compensation.
For example, if your doctor prescribes you incorrect and potentially dangerous medication, this is clearly a breach of his duty to you. However, if you realise his mistake and do not take the medication, you have not been injured and there is no claim as there is no injury to compensate you for.
Causation can often be very difficult to prove. We need to compare how you are after the substandard treatment with how you would have been if you had received the correct treatment.
In order to get over these hurdles and prove both breach of duty and causation, we need the evidence of medical experts e.g. orthopaedic surgeon, dentist. Depending on the difficulty of your case, we may need to involve a number of different experts. It is their evidence confirming whether a doctor acted negligently and whether it caused you an injury which will make or break the case.
Kathryn Watson – October 2013