Being a victim of medical negligence is a genuinely traumatising experience because you’re not only left with adverse effects but you also need to prove your case. You need to go through a three-part test to show that the harm inflicted on you is a direct result of your medical practitioner’s failure on their part. The three-part test will establish whether the doctor had duty of care, if the duty was breached, and whether it was the direct cause of harm. To fully understand whether you can claim medical negligence and how to prove it, you need to understand all the relevant details.

Duty of Care

This usually refers to the standard care that an organisation or individual has to meet when providing potentially harmful services to someone. The standard of care is determined by the practitioner’s level of expertise, specific guidelines by official bodies, and the currently established industry-standard. A consultant is expected to have more knowledge and therefore a higher standard duty of care than a new junior doctor.

Definition of Harm

When it comes to medical negligence, harm includes many different areas from loss of dignity, financial loss, and neglect of legal rights. It also consists of any psychological, emotional or physical harm that an individual will go through due to medical negligence.

Medical Negligence

This is when your medical practitioner fails to meet specific and universal standards of care. It includes: failing to inform the patient of all the risks involved in treatment or failing to get consent from the patient, not performing sufficient tests to give the right diagnosis, and making a life-threatening error during procedures like surgery. The person making a medical negligence claim must be able to prove that the negligence was solely on the part of the hospital or doctor.

Remember that compensation given is to ensure that a victim of medical negligence can return to the theoretical position they would be in, in the case the harm never occurred in the first place. You will be compensated for the pain and suffering experienced together with the amount of money that you spent. Most of the time, victims are highly rewarded to ensure that doctors and hospitals will not be so careless in the future.

Proving a Duty Of Care

In all medical negligence cases, the duty of care is proved by what is referred to as the Bolam test. It sounds very complicated, but it’s not. It takes into account the experience and training of the practitioner and the conventional medical standards during the time of the incident. Below is an example to help you understand the Bolam standard.

A patient sustains fractures in Bolam v Friern Hospital Trust during an electroconvulsive treatment (ECT) and sues for medical treatment because he was neither restrained or given a muscle relaxant during the procedure. ECT is a delicate procedure whereby electric currents are administered to the brain in cases of mental problems and severe depression. Yes, this patient suffered physical and psychological harm, but will this warrant as a duty of care breach?

Most people would side with the patient but sadly negligence was not proved, and therefore the case was dismissed. This was because, at the time of the procedure, it was not standard to administer muscle relaxants due to conflicting research opinions on the risks involved and the benefits. Yes, actual harm was caused but the duty of care to ensure no harm was created could not be proven.

Most people have criticised the Bolam Standard because it heavily relies on medical expertise which could be conflicting most of the time and very difficult to interpret. Courts frequently use the Bolam test irrespective of the fact that it is not considered definitive. The judge could, however, decide that there is proof of negligence even if a medical body suggests different depending on the level of evidence that is presented.

It should also be taken into consideration that the medical field is progressive and many new advancements are reached every single day. Due to this fact, it can be challenging to put the new changes into practice immediately. There could also be errors of judgement from doctors which are not considered a breach of duty automatically. Doctors in training can have an unfortunate lapse in judgement because they lack experience but this is not in any way a duty of care breach.

Since the task of proving a duty of care can be very challenging, it is essential to use leading medical industry professionals like The Medical Negligence Experts to guide you in presenting your case correctly. And always use the best medical negligence solicitors when you want to file a medical negligence claim to ensure you don’t fall victim to fraudsters or generalists posing as actual medical malpractice solicitors.

Proving Causation and Harm

Proving harm is very simple because you could use bank statements, medical histories, payslips, and so many other documents. However, determining that the practitioner’s failure to properly take care of the patient is the direct cause of the harm can be a little tricky. Harm could easily be caused by a variety of different factors and not just the practitioner’s negligence.

Let’s take a quick example of a patient having surgery under anaesthetic and still being administered medicines. There are a lot of potential injuries that this patient could suffer from due to these different treatment procedures he/she is undergoing. So how does the patient conclude that the practitioner made an error, where the error was made, and whether right the standard of treatment was not met?

Negligence claims in the UK are mostly unsuccessful due to these types of dilemmas. It is complicated to establish a connection between the harm and negligence, commonly known as causation. If you can, however, prove that nothing else but neglect caused the harm, then that is usually enough to support your claim.

In cases where there are no other explanations that are reasonable enough, then a new rule is used. This rule is referred to as ‘the thing speaks for itself’. If, for example, somebody’s abdomen is found with any piece of surgical equipment, it will be assumed that the surgeon left it there. Unless the surgeon can somehow come up with a more reasonable explanation, the court will not have any other choice but to grant your case.

Criminal Negligence

In case of a high level of carelessness, the court could charge the doctor with criminal negligence. To prove criminal negligence, it has to be wholly undisputable, and the accused could suffer severe consequences like a prison sentence, loss of licence to work, and hefty fines. These types of cases are scarce although the number of police investigations for potential manslaughter by doctors has been on the increase recently.

What You Will Provide to Your Medical Negligence Solicitor

A qualified solicitor will not only need details of your financial loss and experience of injury but also access to your medical records. You need to give them consent to go through your medical records.


All three parts of the test must be satisfied to get compensation. Doctors are always expected to validate all the steps they take when treating a patient and consider all the potential implications. The doctors in training are also required to seek advice and help from the experienced doctors to ensure they do not cause any harm to patients due to negligence. You will always have higher chances of proving you’re a victim of medical negligence when you use qualified solicitors with excellent reviews.

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Last Update: Saturday, 20th January 2018