In a medical negligence claim, a Claimant must establish firstly that the Defendant breached his duty of care, and secondly that the breach caused or materially contributed to the injury/loss/damage (Causation).
The Claimant has to prove his case (the ‘burden of proof’); the onus is not on the Defendant to disprove it (although the Defendant will usually attempt to do so).
The Standard of Proof is ‘the balance of probabilities’. In other words, if the likelihood is 51% or more that something happened or would happen, then it is proved.
Note that this is the standard of proof in cases in the Civil Courts. In the Criminal Courts (which does not concern this blog), the Standard of Proof is ‘beyond reasonable doubt’, a higher standard of proof.
Liability is usually decided on the basis of the independent expert evidence.
The doctor treating a patient has a duty of care to treat the patient with reasonable care & skill, appropriate to his/her level of training and to the state of knowledge at the time the events occurred. Being junior is not a ‘get out clause’ however because part of ‘reasonable skill’ is recognising your own limitations in relation to the complexity of the case, and calling for help.
The Breach of Duty can be an act, or an omission (a failure to act). Either of these must represent a departure from a standard accepted as proper by a responsible body of medical opinion in the relevant specialty at the relevant time. (See the Bolam test, elsewhere in this blog).
The evidence of the experts regarding the standard of care (and the standard of care itself) besides being responsible & reasonable, must be capable of withstanding logical analysis. (Bolitho -v- City & Hackney Health Authority 1997, also mentioned elsewhere).
Consent for treatment is now a big subject. Montgomery -v- Lanarkshire Health Board 2015 opened the floodgates to a series of other important judgements that have extended the issue of consent throughout medical practice. I will return to the issue of consent in detail in the near future.
The upshot of these consent judgements is that medical ‘paternalism’ is firmly a thing of the past, and for that both doctors and patients should be grateful. I was never comfortable witnessing it, and never liked being on the receiving end of it – so why should my patients feel differently?
The patient has a right to autonomy and accurate information, and along with that, the right to make the decisions about his/her healthcare whether doctors think those decisions wise or unwise.