Making a Clinical Negligence Claim - Definition

How does the law define clinical negligence?

Clinical negligence - as defined by the Law - comes down to 2 things: negligence and causation.

Negligence: You have to show that the actions of one or more of the clinicians who treated you fell below an acceptable standard. The standards by which the actions of a clinician are judged relate to the ordinary skill of a competent professional in his or her field. Even if a doctor made what turned out to be an error of judgement, it is necessary to show that no reasonable, well informed, and competent member of the profession would have made that error.

There are, of course, various types of medical mistake: the clinician in question   may have done something he or she should not have done (for example, giving you the wrong kind of drug), or may have failed to do something he or she should have done (for example, not referring you to a specialist). In all cases the standard remains the same: should a clinician of average competence do what the clinician treating you did?

Such judgements depend on when the treatment in question took place. If a doctor followed a course of action that is now known to be unsafe, but this knowledge was not available at the time, his or her actions are not negligent.

Finally, it should be emphasised that the law recognises that differences of opinion and practice exist in medicine. Treating a patient in a way that some clinicians would not recommend is not necessarily negligent; a negligent act is one that no reasonable clinician would support. Therefore, except in very unusual circumstances, the law will not make findings against a clinician who can show that he or she followed a course of action that was consistent with a school of thought in his or her field of expertise.

Causation: You also have to show that the injuries you have suffered are the direct result of a negligent act. It is not enough to show that you have suffered injuries, nor even that you have suffered injuries that may, in theory, be the result of a negligent act. It has to be shown that the negligence caused the injuries. This is sometimes known as the "but for" principle: it has to be shown that but for the negligent actions of a clinician, the damage in question would not have occurred.

You will only have a successful claim if you can prove both these things. It is important to remember that, even though treatment may be unsatisfactory or have an undesirable result, the law will not define this as clinical negligence unless it can be shown that a negligent act led directly to the injuries suffered.