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Claiming for Clinical Negligence
Clinical or cases almost always involve contentious and complex issues that are rarely easily resolved.
Claiming for Clinical Negligence - an Overview
Clinical or medical negligence cases almost always involve contentious and complex issues that are rarely easily resolved.
Unless there has been a clear violation of the trust afforded to a doctor by his patient, where negligence is so gross as to be considered reckless or incompetent, a clinical negligence case will carefully weigh the interests of the injured party against those of the medical profession. The very basis of clinical negligence law requires an examination of medical procedures and opinion from the perspective of policy-making.
The courts have usually been careful to apply a sensitive touch when handling clinical negligence cases because the very nature of the medical profession is one that is surrounded by death, illness and injury – to allow compensation claims to be made by all those who suffer under the watch of a doctor would, to coin a popular legal phrase, open the floodgates to endless claims. Accordingly, the common law has developed a series of legal tests that aim to establish whether a doctor or health practitioner erred to the point of negligence before any such claim can be brought. Unfortunately for the claimant, these highly technical issues are somewhat complicated to understand or address to a satisfactory standard, which is why it is essential that professional legal advice is sought from a specialist personal injury solicitor.
Claiming for Clinical Negligence – Making a Case
As mentioned above, the law affecting clinical negligence cases employs two unique tests: the Bolam and Bolitho tests. The case of Bolam v FHMC established that a doctor cannot be found negligent if he reaches the standard of a responsible body of medical opinion. In other words, for clinical negligence to be proven by the claimant, it must at least be shown that the doctor acted in a way that was contrary to the practice that is accepted as proper and responsible by those qualified to offer a medical opinion. According to the Bolitho test, a doctor would not necessarily be able to rely on a responsible body of medical opinion as a defence where that opinion belonged to a body of responsible doctors whose management was not demonstrably reasonable (if the opinion could not withstand logical analysis by the court). Complex indeed!
Assuming that a claimant is able to establish a breach of the duty of care that existed between themselves and their doctor, it must still be established that the negligent act or omission caused the harm in a factual and legal sense. In this respect, clinical negligence is much the same as any other law of negligence in that it requires a causal link between the breach of the duty of care and the harm so inflicted.
At this stage, the court will examine all the evidence on a balance of probabilities in order to establish whether liability can be proven.
Clearly, clinical negligence is a difficult area of the law that requires the attention of specialist personal injury solicitors, many of whom work on an affordable 'no win no fee' basis. On a final note, claimants should always remember to act quickly when bringing a claim, as strict time limits apply (usually up to 3 years but earlier in some cases).
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Saturday 04 February 2012
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