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For many people the law surrounding medical negligence is unfamiliar territory, and understandably so. A key part of any claim is establishing what lawyers refer to as ‘causation’ – here we explore what this means and why it’s so important.
My role within the Clinical Negligence Team is to advise people making new enquiries about pursuing a potential clinical negligence claim. I listen to the accounts of those who have experienced poor treatment at the hands of medical professionals and then advise them if we are able to assist them further in pursuing a claim for compensation. In a perfect world we would be able to assist everyone who has been on the receiving end of such treatment but this is not the case. One of the hardest parts of my job is delivering the news when we are unable to assist with a claim. For many people this is hard news to bear, particularly as they may not always be able to understand why we have come to this conclusion, which can be for a variety of reasons.
What do you need to prove to make a clinical negligence claim?
There is essentially a two stage ‘test’ to establish to succeed with a clinical negligence claim:
The first part is fairly obvious – the treatment, or lack thereof, that a person has received needs to have fallen below an acceptable standard, so as to be considered negligent. The standard is judged against the standard of a reasonably competent practitioner, practising in the relevant field at the relevant time. It can sometimes be the case that there has already been an admission to the patient that there were failings in their treatment, or we will rely on independent experts to advise us on whether the treatment fell below an acceptable standard.
The second stage, which can be more complex, is the issue of ‘causation’. Causation is the concept that the negligence has to have caused an injury or adversely altered the outcome for a patient. If this cannot be shown, then the claim will not be able to succeed, even where it is established that there was negligent treatment. Naturally many people often focus on the treatment they have received and the fact that they feel they have been wronged rather than the impact that this treatment has had.
To put it simply, the question we need to ask is “Has the negligence made a difference?”
It can sometimes be the case that medical science simply cannot say whether or not negligence has caused a specific injury or worse outcome, or if it would have occurred in any event. In such cases, the law allows consideration of an alternative argument that the negligence made a material (more than negligible) contribution to the injury. In those circumstances then a claim can succeed where the negligence has materially contributed to the cause of the injury.
Examples of difficulties with establishing ‘causation’
The most usual example of this is where there has been a risk of injury to a person as a result of negligence, but they were lucky enough to escape unscathed. For example, a doctor has prescribed incorrect medication to a patient who takes it for three days before noticing; they then alert the doctor and are immediately put on the correct medication and thankfully suffer no adverse effects.
Yes, the treatment in terms of being given the wrong medication is likely to be negligent, the doctor has made a mistake and failed to notice it, but what harm has been caused? There is no injury for which the person could be compensated. The law only allows for compensation where there is an injury, not simply a risk of injury or near miss.
Misdiagnosis of Cancer
Many people I speak to have experienced a delay in being referred to a specialist by a GP who has missed the symptoms of a specific type of cancer. Demonstrating a negligent delay in referral is not enough, we need to be able to show that if the referral had been made sooner, the person would have had a different outcome, for example: a better prognosis, less invasive treatment and surgery or preventing the spread of the cancer. This is often very complex and requires consideration of the type and stage of cancer, and often careful review of various published statistics, where these are available to show how treatment is likely to have progressed with earlier diagnosis and what the prognosis for the patient would have been at that time, compared to the actual situation following the delay in diagnosis. In many cases a delayed or missed diagnosis of cancer can have a very serious (or even disastrous) effect, and in such cases causation can readily be demonstrated.
The law surrounding negligent treatment is undeniably complex and can seem overwhelming at first glance. I and my colleagues always recommend seeking legal advice, even if you are unsure whether you can demonstrate the care you received was negligent or has caused you avoidable harm. We provide preliminary advice based on our experience as to whether a case is likely to succeed and so should be pursued. If we are unable to assist, for whatever reasons, we may be able to offer advice as to alternative options available, such as making a formal complaint to the treatment provider.