How do you prove clinical negligence?

Claims for medical negligence can be brought for a very wide range of issues – from negligence during birth to failures in surgery and delays in the diagnosis of illness. What is needed successfully to prove a case is the question most often asked by those considering starting a claim. The answer is not straightforward, particularly for certain types of medical negligence.

I would advise anyone who feels they may have a case to contact a specialist medical negligence solicitor for advice. Our team at Kingsley Napley has a wealth of knowledge in this area and understands how daunting it can seem at the outset.  In this article I discuss some key points about how to prove a case which may be helpful for those considering legal action.

It is worth noting that cases of medical negligence that reach trial are decided by a single Judge – there is no jury. The standard of proof is different to that of a criminal claim. Matters have to be proved ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’. However, most cases do not go to trial and many are settled out of Court.

In order to bring a successful claim, you must show that there was a breach of the duty of care owed to you by a medical professional (i.e. that they were negligent) and that this caused you to suffer injury. How difficult this is to do will depend on the circumstances and an experienced medical negligence solicitor will be able to advise fully.

Proving a breach of duty

A breach of a duty of care by a medical professional means that the care they provided was below a reasonable standard. To prove this, evidence needs to be obtained. The first step will usually be for a solicitor to request relevant medical records. These are vital evidence in most claims. It will often be advisable to seek records, not only from medical institutions where the alleged problems have taken place, but also other hospitals / clinics where a patient has been treated in order to build a complete picture of their medical care. A solicitor will also talk to relevant witnesses. This will primarily be the injured patient (where possible) but also anyone else who can give an account of what has happened.

Evidence gathering is highly important and for patients it is often a good idea to use a diary or otherwise keep track of what is happening during treatment. All sorts of evidence may be used in a case and can include any pictures that have been taken on mobile phones or messages sent which relate to the treatment.

While a lawyer will assess whether or not there is a good claim, it is not the lawyer who can show whether or not there was a breach of duty. Once enough evidence has been gathered, this will need to be sent to an independent medical expert who will be able to advise whether or not the medical professional was in breach of their duty.

Getting the right expert

It is imperative that the right expert is instructed. This usually needs to be a medical professional who is working, or who has worked, in a similar role to the professional in question. If the expert does not have the right qualifications then it may be harder to persuade a Judge at a trial that the evidence they give is correct. Usually, the defending medical professional will have their own legal team and will obtain their own expert evidence. If a case gets to trial, a Judge will have to decide which of the experts’ evidence is preferred.

At Kingsley Napley, we are very experienced in getting the right experts for our clients.

Proving causation

On top of showing that the standard of care a patient received was negligent, it also has to be proved that this led to the patient being injured. This is called ‘causation’. Once again, medical records will be vital evidence, but very often it is another expert (or experts) who will need to report on what injuries resulted from the negligence. In some instances it is quite straightforward – for example, if the wrong body part was amputated. But many cases are far more complicated, such as where it is not clear what part the negligence played in causing the injury.

Causation is often the most difficult element to prove. A medical negligence lawyer needs to understand the different aspects of the law in this area and ask the right questions of the experts. The Kingsley Napley team is particularly knowledgeable regarding complex causation problems and has a proven track record of winning cases.

Proving losses

If a medical negligence claim can be successfully proved then compensation can be recovered for the losses suffered. This may include both past and future financial losses. In order to prove what a patient might need in the future, this again requires evidence from independent experts in fields such as occupational therapy and accommodation. However, further evidence is also important, including records of expenses (i.e receipts) that show payments made as a result of the negligence (such as for equipment).

As I have outlined, proving a clinical negligence claim can be extremely complicated but the right legal team will make the process much easier to cope with and will provide support throughout.

It is important to note that there are time limits associated with the process and if you consider you may have a medical negligence case you should contact a solicitor for advice as soon as possible. Further information about bringing and funding a claim can be found on our website pages and in our guide to making a claim.

If you are concerned about the medical treatment that you or a member of your family has received, please contact our friendly and sensitive team for a no obligation discussion.

about the author

Katie is an Associate in the Medical Negligence & Personal Injury team having recently completed her training contract at Kingsley Napley. Katie has experience in litigating a range of cases including birth injuries, ophthalmic injuries, misdiagnosis and fatal accidents.