Dave Berry | Partner

Just Because Something Has Gone Badly Wrong – Doesn’t Mean There A (Clinical Negligence) Claim

Medical treatment can go wrong, and clinicians can make mistakes. Mistakes can happen, even where the clinician is acting with reasonable care. The human body is complicated and medicine can often be very difficult to practice.  What then is the line between a simple mistake or error, against a negligent mistake or error with which damages (compensation) can be awarded?

There are two common routes down which a clinical negligence claim can proceed. The first route is based on the professional negligence of the clinician(s) involved and the second route is based on a lack of informed consent being provided.

In Scotland, the test for when your treating clinician has been negligent is set out in the case of Hunter v. Hanley 1955 S.C. 200. This case dates from the 50’s, but is still the law that is applied.

The test for when informed consent has not been provided is contained within Montgomery v. Lanarkshire Health Board 2015 UKSC 11.

In this article I will be focusing on the test within Hunter v. Hanley.  In any personal injury action, in order for damages to be awarded by the court, the Pursuer (injured party) must prove the Defender has been negligent. If negligence cannot be proven, the case will fail. It is not enough that something has gone wrong, and you have been injured. Your injury must be caused by negligence.

Hanley was being administered an injection by Hunter. As the injection was being carried out, the hypodermic needle broke. She alleged this accident had been caused by Hunter’s failure to exercise the care and competence which it was his duty to observe in giving the injection and by utilising a needle that was not suitable for the injection by lacking the strength required.

The key issue the court required to engage with was whether simply deviating for normal practice by the clinician provided evidence of negligence. The court considered that it was not, and to so find would ultimately hinder progress in medical treatment. Even major departures from normal practice may be required depending on the particular circumstances of the patient and treatment being administered. In short, doctors (and other professionals)  must be allowed the freedom to practice, exercise judgment and react to situations as they develop.

Lord Clyde thereafter set out the test for when a clinician may be considered to have been negligent:

  1. It must be proven that there is a usual and normal practice;
  2. It must be proven that the particular clinician(s) concerned did not adopt that practice;
  3. It must be established that the course of action that the particular clinician(s) adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.

This test sets a high bar for when the actions of a clinician may be considered negligent:

  • “No professional man” – If the clinician can show that the course of action chosen was one that others would have followed then negligence may not be established.
  • “Ordinary skill” – The clinician, and the treatment will not be judged against the theoretical pre-eminent expert in the field (or the extremely inexperienced junior), but rather a clinician of ordinary skill.
  • “Ordinary care” – A failure to provide gold standard or perfect treatment is not enough to necessarily prove negligence, the standard is only that of ordinary care. 

Essentially, to prove that an error by a clinician, misdiagnosis or decision etc has been negligent it must be proven by the Pursuer that no other clinician of ordinary skill, acting with ordinary care would have made the same error, misdiagnosis or decision. It follows that the mere fact something in your treatment has gone wrong, even if badly wrong, does not mean you will prove negligence.

 If you manage to prove negligence, the next hurdle to be overcome is that of causation. It must be proven what injury was caused, or materially contributed to by the negligent act. This hurdle can often be as tricky to negotiate as establishing negligence. For example, it is entirely possible to have suffered negligence, e.g. a cancer diagnosis being missed, where this has no impact on the final outcome, e.g. the cancer was not treatable. The Pursuer must prove the loss, that if the negligence hadn’t happened, their outcome would have been positively different. 

To answer the questions of negligence, and causation medical evidence will required obtained. In relation to negligence an expert report will be required from an expert of the same practice area (e.g. if negligence is alleged against an oncologist, an expert report will be required from an oncologist). The medical expert will require to confirm what the usual and normal practice is in any area of practice, whether that was deviated from, and if it was, whether the deviation was such that no ordinarily competent clinician would have so deviated if acting with ordinary care. Thereafter separate evidence will be required in relation to causation.

 At Jackson Boyd we are a recognised Leading Firm (Legal 500 and Chambers) in relation to cases involving clinical negligence. If you think you have suffered injury as a result of potentially negligent treatment, give us a call today.

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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