Medical Negligence: What A Pain In The Backside!

A handy guide to deciphering negligence’s biggest niggles.

This is for those of you who seek a simple explanation to a complex area of law. Use the guide against your own situation to see if you could potentially have a claim.

Let’s start at the very beginning. A very good place to start.

When is a doctor, not a doctor?

When that doctor is on a cruise ship. Apparently.

No, that wasn’t the worst joke in history.

Rather, a sad reality in the case of Me v X (Cruise Company).

(For legal reasons they shall remain unnamed as the case is ongoing).

In September 2016, I was on board a cruise ship when I developed a pain in my lower back. After a few days a large lump had formed, so I went to see the ship’s doctor.

After a consultation lasting no longer that 90 seconds, I was told it was shingles, and there was “nothing to be done as it is likely to get worse before it got better.”

4 days later the lump had blistered, but thankfully I was getting on a plane to come home. 

In Dubrovnik departure lounge, the lump erupted.

Upon arriving back in England, I was rushed to hospital to undergo an emergency operation as at this point I was at risk of septicaemia.

To cut a gruesome story short…

I’ve had 7 operations, 2 years off university, and now own a scar that looks Harry Potter’s forehead. 

Now for the bit you came here for, I will tell you what you need to know for a successful claim in the tort of negligence. 

For a claim to succeed you need to prove:

1. There was a duty of care owed
2. There was a breach of that duty
3. That the breach of duty caused you significant damage

Don’t worry, I will go through all this in turn to help specifically identify what needs to be done before instructing solicitors to do the rest of the dirty work.

1. Duty of Care:

A duty of care arises when a doctor enlists you as a patient or as soon as you enter an NHS hospital.

The case that set out this test is Caparo Industries Plc v Dickman [1990]

Under the duty of care branch of negligence, there are 3 requirements to establish:

1. Foreseeability – is it reasonable to think that the doctor’s actions could harm the patient?
2. Proximity of Relationship – are you the patient that the doctor’s care is owed to? (Sounds obvious but there are cases where people sue a doctor for something they’ve done to someone else).
3. Fair, Just, and Reasonable – would it be logical to say that this doctor owed you a duty of care? 

Darnley v Croydon NHS Trust [2018] is a Supreme Court case that saw an NHS A&E receptionist give Mr Darnley a wrong waiting time of 4-5 hours, so he left as he felt too unwell to wait.

Only to return in an ambulance 90 minutes later in a much severer condition. The courts decided that a receptionist is an extension of the NHS and therefore owed a duty of care to the patient. This is important as duty of care can now extend to non-medical support staff.

2. Breach of Duty:

The best way I can describe breach of duty is by quoting a judge (it’s not as boring as it sounds):

“He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a body of men skilled in that art.”

Bolam v Friern Hospital Management Committee [1957]

To put it another way, would another doctor of a similar skill set have done the same as the accused negligent doctor? If the answer is no, the accused doctor has acted negligently.

Failure to advise a patient on the risks of treatment is another common example of breach.

This was shown in Montgomery v Lanarkshire Health Board [2015] when a gynaecologist failed to advise her diabetic patient on the risks of a vaginal birth as she was likely to have a large baby.

During delivery, complications arose and the baby was starved of oxygen for 12 minutes resulting in being diagnosed with cerebral palsy.

3. Breach caused you Damage:

In law, it is what’s known as proving ‘Causation.’

Causation can be explained by using the ‘but-for’ test, set out in Barnett v Chelsea & Kensington Hospital [1969] and is essentially this sentence:

But-for the Defendants (doctors) actions, the Claimant (you) would not have been injured.

Causation is the most common stumbling block in most negligence claims as you must prove that on the balance of probabilities (51% or higher) that the breach of duty caused harm.

It is for the courts to decide what caused you the most harm. Was there anything that could be done about your original condition or did the doctor fail to give the correct treatment and therefore made it worse?

In JAH v Dr Burne, Devonshire, Jackson & NHS [2018] there were multiple negligent parties and it was up to the judge to decide which of the parties caused the most injury/who was the most negligent. Interestingly, only one out of the three doctors was held liable and the claimant was awarded £150,000 for her injuries.

A case which is fairly close to my own is Williams v Bermuda Hospital Board [2016], as this case involves a delay of treatment that led to a spreading of pus around the body after a ruptured appendix was left untreated for six hours.

Sounds all too familiar for my liking.

This was only a microscopic look at medical negligence and this post was not designed to be extensive, I wanted to cover the very basics to see if you have a case and to break down the perplexing legal-lingo.