Clinical
negligence
(formerly medical negligence)
refers not only to the negligence of doctors but to all the related medical professionals such as nurses, dentists, pharmacists and physiotherapists. The basic litigation required for all these claims is the same; the main difference lies in establishing whether a particular professional duty of care has been breached.
There are several functions behind professional malpractice claims including; such claims make professionals more accountable for their actions, the threat of litigation ensures that each profession maintains as high a standard of practice as possible within their area, explanations are provided when procedures go wrong, compensation and/or an apology are given to any ‘wronged’ parties, a degree of retribution is provided to the ‘wronged’ party.
Clinical
negligence
(formerly medical negligence)
A number of reasons can be given for the growth in such claims of clinical negligence. Certainly there has been a profound change in the relationship between the professional and his/her client, particularly so within the clinical sphere. Whereas there was once an automatic deference and acceptance by clients, often there is now open scepticism and a willingness to challenge the authority of such professionals. Much of this ethos has come from America.
Alongside this, within the medical world there has been a tremendous growth in both technology and the availability of clinical drugs for treatment. This has had a significant effect on the attitudes of ordinary people in terms of their expectations as to the results of any treatment. Many (falsely) assume that the outcome of medical treatment is always going to be successful and on the occasions when things do go wrong, answers are demanded.
In clinical negligence it is well established within the professional/client relationship that a duty of care exists. It is clear from many authorities that a doctor owes his/her patient a duty of care in the normal course of events.
In clinical negligence, in order to show a breach of duty, the claimant must show that the doctor has taken a course of action, which would not have been acceptable to any reasonable body of medical opinion. The test utilised was actually developed in relation to clinical negligence but has been subsequently accepted to cover anyone exercising professional skills.
It is for the claimant to provide evidence of the negligence on the balance of probabilities. The assessing of such evidence is often a difficult task for the claimant especially in clinical negligence claims. Occasionally the Doctrine of Res Ipsa Loquitur (‘the situation speaks for itself’) may assist.
In certain cases the courts may make a rebuttable presumption that there has been negligence and it is for the defendant to demonstrate the opposite. Obviously this can greatly assist the claimant.