For the vast majority of patients who receive high-tech medical care in the UK, no problems arise at all. Of those that do run into trouble, however, an embedded minority might find that they’re on the receiving end of medical negligence.
Establishing whether medical negligence took place requires satisfying several conditions, established by the Bolam test. We can think of these in terms of four distinct ‘D’s. Before taking legal action to correct medical negligence, these should be considered.
The medical professional or institution will need to owe a duty of care to the claimant for medical negligence to have taken place. This means, among other things, understanding the limits of their own competence and expertise, and referring you to more specialised experts when they feel that that expertise is being stretched.
Not only will the duty of care need to have been owed, the standard of care required will need to have been deviated from. In British law, this means that the defendant will need to have taken an action which a competent member of the profession would not have. Or, failed to take an action where a competent person would have. Establishing this usually requires that expert witnesses be brought in to offer their opinion.
3. Direct Causation
The medical professional’s deviation from the required standard of care will need to have caused damage to the person under their care. If they make a mistake and no harm comes of it, then they aren’t guilty of medical negligence.
For example, if you are prescribed the wrong drugs, and you suffer side effects as a result, then you might convincingly argue the side effects you experience amount to a harm caused by the medical professional’s failure. Moreover, you might argue that the prescription also caused a delay in a truly effective treatment being administered.
This case demonstrates that it isn’t just individual practitioners who can be found guilty of medical negligence, but organisations like the dispensary, where labelling errors and other administrative mishaps have had dire consequences.
Damages are among the ways in which the courts can put right the wrong (in legal parlance this is called a ‘remedy’). The damages are there to compensate the injured party for their loss. Of course, in practice there might be no monetary value that can return the parties to the state they were in before the malpractice took place.
Compensation can do several things. It can help to compensate for the pain and suffering endured as a result of the injury. This might be physical or psychological. Compensation might also make up for any financial losses incurred, perhaps because of an inability to work that resulted from the injury.