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Health Care Risk Insights: Medical Negligence Basics

As a medical professional, you have enough on your mind without having to constantly worry about whether a patient will file a malpractice claim against you and whether the claim is valid or not. Nevertheless, in today’s society, medical negligence claims are becoming more commonplace.

Whether you are a doctor, nurse, cosmetic surgeon, dentist, therapist, paramedic, nutritionist or any other type of medical professional, working in the National Health Service (NHS) or privately, you should have a solid grasp of what medical negligence is and how it affects you. With the proper cover and knowledge, you can help ensure that one mistake or false allegation does not place your job and finances at risk.

Overview

The overwhelming majority of medical negligence claims, also commonly referred to as medical malpractice or clinical negligence, are brought under the tort (or delict, in Scotland) principle of negligence. The claims are brought by claimants seeking compensation alleging that their medical professionals caused them injury or harm by failing to provide the proper standard of care as required by their profession. In a private health care setting, there may also be a claim under the law of contract.

In order for a claimant to prove a medical professional was negligent, he or she must typically establish:

  • The medical professional owed them duty of care.
  • The medical professional breached a duty of care.
  • The breach of duty caused harm.
  • Damages or other losses resulted from that harm.

Owed a Duty of Care

It is a well-established principle through common law that a duty of care exists between a doctor or medical professional and his or her patient—that is, the medical professional has a responsibility to provide proper care for the patient. It is generally not difficult to prove that the medical professional owed a duty of care to his or her patient.

Breached Duty of Care

The claimant must also show that the medical professional breached their duty of care. This means proving that the care provided by the medical professional fell below the standard of care expected of a competent medical professional in the same field. The typical standard of care test, also known as the ‘Bolam’ test, holds that a medical professional is not negligent if he or she acted in accordance with the opinions and practices accepted by a responsible body of practitioners in that same field.

However, accepted practices can vary among different responsible bodies of practitioners In recent years, courts have held that the responsible medical body’s opinions or practices relied upon by the medical professional must be logical and reasonable. It may not be enough anymore to just rely on a body of opinion supporting the professional’s actions; he or she should also make sure that opinion is logical and reasonable.

Caused Harm to Patient

One of the most difficult areas for the claimant to prove is causation. The claimant needs to establish that the medical professional’s breach of duty directly caused or significantly contributed to the injuries suffered by the claimant. Often, a claimant may be able to show that the medical professional breached his or her duty, but cannot establish that the failure of that duty was the cause of the claimant’s injury.

The standard test for causation is the ‘but for’ test. The test asks whether the damage suffered by the claimant would not have happened ‘but for’ the medical professional’s actions. Courts have made slight modifications to the ‘but for’ test, such as cumulative causation and material increase in risks.

Resulted in Damages

Finally, the claimant must be able to establish damage, specifically damage that a medical professional can be held responsible for. This includes physical and psychiatric injuries, and financial losses such as loss of earnings. However, losses that are not reasonably foreseeable or too remote will be excluded.

When compensating for damages, courts attempt to place the claimant back into a position as if the negligent act had not occurred. Types and amounts of compensation available will depend on each country’s governing law. Damages in Scotland will be governed by Scots law and can include compensation for emotional, physical and financial harm. In England, Wales and Northern Ireland, there are typically two main types of damages:

  • General damages—awards for pain and suffering and loss of amenity.
  • Special damages—awards for any past and future financial losses, including lost earning and costs for care and equipment.

Medical negligence claims can quickly become complex and time-consuming, not to mention costly to defend. As a medical professional, you need to make sure you and your employees are fully covered for any claim or circumstance that may arise.

Business Insurance Service has the expertise and experience to make sure there are no gaps in your medical malpractice policy and that you are fully covered.

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For more information and for insurance solutions to protect your health or medical business, contact Business Insurance Service today.

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