What amounts to Medical Negligence?

The test for medical negligence is the well-known Bolam test from the Judgment of McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582:

“The test is the standard of the ordinary skilled man professing to have that special skill… A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… Putting it the other way around, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”

It can therefore be observed that:- 

1. In order for the Court to judge whether a doctor is negligent, it would have to consider the standards of the medical profession. For example, if a claimant alleges that an obstetrician was negligent, it would be necessary for the claimant to find an obstetric expert to comment on the normal practice applicable to the case.
   
   
2. A doctor may escape liability if he can find an expert to give an opinion confirming that he had conformed to normal practice accepted by the medical profession, even though other doctors in the same specialty may take a different approach.
   
   
3. If a doctor comes up with such an expert opinion, it would be necessary to consider in detail whether that expert’s reasons are logical and are likely to be accepted by the Court.

In addition, the claimant must have expert evidence to show that the wrongful act or omission of the doctor caused loss and damage.  In the usual clinical situation, there could be many causes for an injury.  The claimant does not have to show that the wrongful act or omission was the sole cause, but it is necessary to show that it materially contributed to the loss and damage.

Our Experience

In any one medical negligence case, a doctor or a hospital can make a range of errors.  These are some of the specific instances where we have successfully obtained compensation for patients and their families: -

• Failing to notice that a patient was suffering from a serious condition (e.g., as a result of misinterpreting the patient’s physical signs): Cases of this nature include general practitioners who failed to appreciate the symptoms of appendicitis, and doctors who failed to detect physical signs of lymphoma, etc.
  
  
• Making a wrong diagnosis (e.g., as a result of failing to interpret radiological images or electrocardiograms correctly, or miscommunication with other health professionals, or performing the wrong diagnostic tests):  These cases include radiological negligence, missed fracture cases and doctors who failed to treat patients suffering from a heart attack, etc.
  
  
• Misreading medical records and then performing wrong procedures:  This type of error is rare.  However, we have dealt with an unusual situation where a doctor performed a “release of trigger finger operation” when he should have carried out an operation to excise a nodule at the finger.
  
  
• Hospital or clinic administrative problems:  We have handled cases where staff failed to inform patients of adverse test results.
  
  
• Delay in making a correct diagnosis:  This category of cases includes delayed diagnosis of cancers or other tumours, causing patients to have to undergo aggressive chemotherapy treatment, targeted therapy, extensive operations and other treatment.  In some cases, patients are unfortunately left with a very poor prognosis and have died.
  
  
• Failing to refer or consult a specialist:  This can happen where a doctor is over-confident in his work, but it can also happen in a hospital setting.   Our experience is that this then turns into a mis-diagnosis.
  
  
• Failing to follow treatment protocols:  We have handled a number of obstetric cases where obstetricians failed to carry out systematic examinations of patients suffering from post-partum haemorrhage.
  
  
• Failing to warn about risks and possible alternatives or variant treatments:  Cases of this nature usually relate to failures to advise on treatment options in spinal surgery cases and other operations.
  
  
• Retained foreign objects in a patient after operations.
  
  
• Failing to perform procedures properly:  We have handled cases where negligence have caused many different kinds of problems, including extravasation injuries, unnecessary operations, spinal problems, skin problems, bowel perforations, hypoxic brain damage or death.
  
  
• Failing to follow-up on patients after operations:  We have seen this occurring where doctors have neglected a patient’s complaint of pain, discomfort and complications after an operation.
  
  
• Failing to inform patients of errors.
  
  
• Accidents in hospital environments.

The above list represent some of the cases that we have handled.  Please feel free to contact us to discuss your individual case.

Read further on: Is it difficult for a claimant to pursue a Medical Negligence claim?

This article provides general views only and must not be treated as a substitute for legal advice for individual cases.  Whilst care has been taken to ensure that details are correct, no responsibility can be taken for losses arising from reliance upon its contents.