Duty Of Care In Medical Negligence Claims

By Lewis Houston. Last Updated 29th March 2023. Breached duty of care in medical negligence claims is integral to successfully seeking compensation. If a third party breaches their duty of care, you could claim if this breach causes you to suffer. As such, if you’ve been injured or your condition has worsened due to clinical negligence or medical negligence, you could receive thousands of pounds in compensation. 

duty of care in medical negligence claims

A guide about duty of care in medical negligence claims

Our advisors offer free legal advice and could tell you if you’re eligible to claim in just a few minutes. They are available 24/7, so you can contact them at a time that works for you. If your claim appears to be favourable, they could connect you with a medical negligence solicitor from our panel. They could take your case on a No Win No Fee basis. 

On the other hand, please continue reading to learn more about medical professional negligence cases. 

Select A Section

  1. What Is Duty Of Care In Medical Negligence Claims?
  2. What Is Meant By Duty Of Care In Healthcare?
  3. Establishing A Breach Of Duty Of Care In Medical Negligence Claims
  4. Meeting The Burden Of Proof
  5. The Bolam Test
  6. Medical Negligence Compensation Calculator
  7. Talk To A Medical Negligence Claim Expert
  8. Related Medical Negligence Claims

What Is Duty Of Care In Medical Negligence Claims?

This guide will help establish what is meant by the duty of care in medical negligence claims. This will give you a better understanding of whether you’d be able to claim successfully. Medical negligence claims, much like a personal injury claim, revolve around showing how a third party breached their duty of care. The below three things need to occur for you to be able to receive compensation: 

  1. The medical professional owed you a duty of care
  2. They breached this duty
  3. This breach caused your injury or illness, whether creating a new one or worsening a pre-existing one

Therefore, to receive compensation, you need to prove all three of these things. We will explain a medical professional’s expected standard of care and provide examples highlighting clinical or medical negligence. 

If you prefer, you can call our advisors whenever you’re available for free legal advice. They can confirm if you’ll be able to claim and even provide a reliable compensation estimate to you over the phone.

What Is Meant By Duty Of Care In Healthcare?

Every patient in healthcare is owed a duty of care. This is because a medical professional, whether a nurse, GP or doctor, has a responsibility to perform their roles within the required standard of care. 

It’s important to note that doctors in the UK also need to agree to the General Medical Council (GMC) code of conduct to get a licence. This includes agreeing to act with integrity and accountability towards every patient. 

However, this isn’t to say that medical professionals can’t make mistakes. This is arguably the most crucial aspect when attempting to claim. Whether the medical professional has breached their duty of care in medical negligence claims depends on if their actions have gone below the expected standard of care for their profession. 

Establishing A Breach Of Duty Of Care In Medical Negligence Claims

A healthcare professional can breach their duty of care in many ways. Mistakes that could lead to you being able to make a claim include:

  • Being provided with the wrong medication. This could either be due to a misdiagnosis or an administrative error that has resulted in you receiving another person’s prescription. If negligence caused this scenario, you could claim. 
  • Not being diagnosed correctly due to negligence or there being an unnecessary delay in the diagnosis. Furthermore, with serious injuries, like a broken pelvis or a back injury, a delay in the correct treatment can greatly impact your quality of life. 
  • Not checking the appropriate medical history before making medical decisions. A person may have a latex allergy, for example, that causes them to suffer an allergic reaction if bandages containing it are provided.
  • The wrong tests being performed on you or not having the correct scans or procedures performed despite clear symptoms. This could, for example, include not having an X-ray or CT scan even though you clearly need it. This could lead to a misdiagnosis. 
  • Never events. Medical professionals consider these to be events that should never occur. Negligence in this instance includes removing the wrong limb in an operation. 

Meeting The Burden Of Proof

As the claimant is seeking compensation due to them believing that their duty of care has been breached, they ultimately have the burden of proof. This means that you need to prove that medical negligence led to your unnecessary injury or a worsening of your condition. In being owed a duty of care, the claimant’s responsibility is to prove that it was breached by negligence. 

Whether you decide to use a medical negligence solicitor or not, a crucial aspect of successfully claiming will revolve around providing evidence. This evidence needs to show direct causation between the actions of the medical professional and the injury you’ve suffered. 

Evidence that could help you includes:

  • Medical scans or reports
  • Getting an independent medical assessment of your injuries
  • Providing a list of all of the procedures or treatments you’ve had since the incident occurred
  • Photographic evidence of the injury

Duty Of Care – Medical Negligence Time Limits

In a claim for medical negligence where a duty of care has been breached and you have suffered avoidable harm, you will need to issue court proceedings within the limitation period. When claiming for a negligent standard of care, it’s important to do so before the relevant time limit expires otherwise your claim could be statute-barred.

The Limitation Act 1980 states that you generally have three years from the date of the incident to take action. Additionally, following a breach of duty of care, a medical negligence claim can be made three years from the date of knowledge. This is when you became aware that the harm you suffered was caused by negligent treatment.

There are exceptions to the medical negligence claim time limit. For example:

  • The three-year time limit is suspended for minors until their 18th birthday.
  • The time limit is suspended indefinitely for adults without the mental capacity to start their own claim unless they regain the required capacity.

A litigation friend can act on behalf of children or adults without capacity whilst the time limit is suspended. Anyone can be appointed in this position by the court, but on the condition that they make fair and competent decisions about the case and have no conflicting interests with the claimant.

From our experience, we would advise that you take action sooner rather than later. Gathering evidence to establish medical negligence has occurred can sometimes be a lengthy process. Additionally, the defendant may need to be subject to a Bolam test, meaning you may need to wait for the results of this.

Get in touch to be connected with a medical negligence solicitor from our panel. They’ll be able to help you every step of the way with your claim and can collect evidence on your behalf to ensure your claim is submitted in full before the time limit expires.

The Bolam Test

Proving that there has been a breach in the duty of care in medical negligence claims is partly built around The Bolam Test. As part of the claims process, the medical professional’s actions are assessed to see if they acted within the standards expected of the profession. 

The Bolam Test was created after the case of Bolam v Friern Hospital Management Committee [1957]. The defendant was a mentally ill patient who suffered a fracture after being administered electro-convulsive therapy. The defendant argued that muscle-relaxant drugs may have prevented the fracture. 

However, the medical professional did not administer these drugs due to the potential health risks in providing them. The medical professional’s peers assessed that suitable treatment actions had been performed by not providing them to the patient. With this in mind, now medical peers assess the medical professional’s actions in negligence cases to determine if they were negligent. 

As previously stated, a medical professional has an established duty of care. After performing the Bolam Test, if the peers of the medical professional believe that their care fell outside of the required standard, you could receive compensation. 

Medical Negligence Compensation Calculator

There are two potential heads of claim when making any medical malpractice or medical negligence claim. You could claim for the psychological and physical injuries caused by the negligence through general damages. Meanwhile, you could claim for financial losses associated with the injuries through special damages. 

It’s important to note that, as established above, the burden of proof is with the claimant. This means that, for you to potentially receive compensation, you need evidence. Evidence you may need to prove the value of the financial damages includes receipts, invoices and bank statements. 

Regarding general damages compensation, work from the Judicial College provides you with a better understanding of what you could receive for a breach of duty of care in medical negligence claims. They do this by comparing the injury to the payout received for claims settled in court. Therefore, by doing this, they’ve been able to provide compensation brackets in their Guidelines. 

Furthermore, we use these compensation brackets to provide you with as reliable a compensation estimate as possible. Below is a list of brackets and their relevant injuries. The Judicial College has supplied these figures. 

Type of Injury Amount of Compensation Description
Brain (ii) £90,720 to £150,110 Cases in this bracket result in the injury causing an intellectual deficit that is moderate to severe, a change in personality, an effect on speech, senses and sight with a significant epilepsy risk.
Eye £49,270 to £54,830 Injuries in this bracket lead to complete loss of sight in one eye. The award also takes into account the risk of sympathetic ophthalmia.
Chest £65,740 to £100,670 This bracket includes injuries that cause traumatic damage to the lung(s), chest and/or heart leading to permanent damage, physical disability and functional impairment.
Reproductive System: Female £17,960 to £36,740 This bracket is for infertility without any medical complications where the injured person already has children.
Kidney Up to £63,980 Injuries in this bracket cause a significant risk of future urinary tract infection or that result in total natural kidney function loss.
Bowels £44,590 to £69,730 Cases in this bracket are severe abdominal injuries that cause functional impairment and can often necessitate temporary colostomy, leading to disfiguring scars.
Neck: Moderate (iii) £7,890 to £13,740 Injuries in this bracket may have exacerbated or accelerated a pre-existing condition over a shorter period of time, in most cases, less than five years.
Leg (iv) £97,980 to £132,990 This bracket includes a below-knee amputation with no complications.
Ankle: Moderate £13,740 to £26,590 Injuries in this bracket includes fractures and ligamentous tears causing difficulty standing or walking from longer periods of time.
Foot: Severe £41,970 to £70,030 Cases in this bracket lead to fractures to both heels or feet leading to a substantial restriction on movement.

If you’d like our advisors to value your claim for free, get in touch.

Talk To A Medical Negligence Claim Expert

Our advisors offer free legal advice, meaning that they can clarify in just a few minutes if you’re eligible to claim. They are available 24/7 and have years of experience, so they can help with any questions or queries you may have. If you use our panel of medical negligence solicitors, they can work your case on a No Win No Fee basis. This means that: 

  • You won’t need to pay the solicitor’s fee during the claim
  • You won’t need to pay the solicitor’s fee if your claim isn’t successful
  • If the claim wins, the solicitor takes a small and legally capped percentage to cover their fee. 

Their specialised expertise means that they could help you receive thousands of pounds in compensation. Therefore, to learn more, please get in touch using the contact details below. 

Related Medical Negligence Claims

Additionally, to know more about making medical negligence claims, please refer to the web pages below. 

Want to learn more about never events? If so, you can by reading this NHS guidance. 

You can also complain to the NHS. Please find out more about how to do this on their website. 

If you’d like medical guidance about a potential broken bone injury, please read this article. 

Do you want to know more about how compensation payouts are calculated? If so, visit our website. 

If you or a loved one have suffered harm as a result of a leukaemia misdiagnosis, you could be entitled to make a clinical negligence claim. This guide explains the process and what evidence you may need.

To learn more about the claims process for when a third party is not admitting liability, read this guide. 

Have you suffered from a head injury? If so, and you want to know if you can claim, please read this article. 

Alternatively, please get in touch with our team to learn more about what constitutes a breach of duty of care in medical negligence claims. 

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