What is duty of care in a medical negligence claim? | Fieldfisher
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What is duty of care in a medical negligence claim?

All medical practitioners owe a duty of care to their patients. But what does duty of care actually mean?

In law, duty of care is defined as a duty to provide care at a level reasonably expected of any competent doctor, nurse, midwife, surgeon, etc. 

A newly-qualified GP, for example, would be expected to provide the same level of safe care as someone more experienced when performing the same task. 

If the medical practitioner fails in that duty and you sustain an injury because of it – physical or psychological - you may have a case to pursue a medical negligence claim against the person or hospital that treated you. If you think you have a claim, speak to any of our medical negligence solicitors free of charge for advice.

For such a claim to succeed, your medical negligence solicitor must prove on your behalf:

  • That you were owed a duty of care by the defendant
  • There was a breach of that duty of care
  • You have suffered injury or avoidable harm significant enough to warrant the cost of bringing proceedings for compensation
  • A direct link between the breach of duty of care and your injury.

Your solicitor will have to show with evidence on the balance of probabilities ie more likely than not, that the defendant’s actions or omissions caused or materially contributed to your injury or caused deterioration in your condition. 

Your solicitor will obtain evidence from independent medical experts, about the relevant standards of reasonable competence. If this is not agreed, a court will then ultimately decide whether the defendant's actions fell below those standards, after listening to the evidence from experts from both parties to the claim. 

Duty of care examples to a patient include:

  • Taking a proper medical history
  • Investigating the patient’s symptoms and complaints properly
  • Making a proper differential diagnoses
  • Referrals to specialists where needed
  • Providing a reasonable course of treatment
  • Further follow-up if reasonably necessary

This means that providing a delayed or wrong diagnosis can be negligent, as is failing to refer a patient onto a specialist in good time, or pursuing the wrong course of treatment. Failing to discuss options and impacts of treatment and gain consent can also constitute a breach of duty of care.

The Bolam Test has become the legal benchmark in proving a medical practitioner failed in their duty of care responsibilities. 

The case Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 involved a patient with depression who was voluntarily admitted to the hospital for electroconvulsive therapy. This ECT was subsequently delivered without the patient being given muscle relaxant drugs and he was only restrained from falling off his bed by the presence of nursing staff. During the treatment, the patient suffered violent muscle spasms causing him to fracture both hips.

Mr Bolam pursued a medical negligence claim, both on the grounds that had he been warned of this risk, he would never have agreed to the treatment, and that had he received the muscle relaxant drug, he would not have been injured. 

The defence argued successfully, that a responsible body of medical opinion would not have explained those particular risks to Mr Bolam unless specifically asked by him to do so. The defence said therefore, the doctors in question had not provided care that was less than reasonably competent. The Bolam test emerged as a legal benchmark, placing the burden of proof on claimants to demonstrate that no responsible body of professional opinion would have endorsed the particular course of treatment complained about. 

However, there is subsequent case law, which says that it is not enough for a defence to say about a doctor's actions, that 'most doctors would do it like this, therefore this is competent care'. They also have to show that such actions are logical and reasonable, not just common practice, in order to be found to be competent. 

Most of our medical negligence cases involve failure to provide a duty of care to a patient and we are expert in handling such claims. You can read about our medical negligence cases here

Why choose Fieldfisher's medical negligence team?

Settlements

We achieve record damages for people suffering serious injury following medical negligence. Last year, we recovered more than £200m in compensation claims.

Experience

We have more than 30 years' experience pursuing claims for people injured by medical negligence, clinical negligence, medical accidents and medical mistakes.

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We are ranked top tier in leading legal directories and regularly recognised in industry awards. We are accredited by APIL, panel members of AvMA and members of the Law Society’s Clinical Negligence Panel.

Head and shoulders above every other team in the country. It is a superbly led team with deep experience and fantastic resources which is repeatedly successful.

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