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At Taylor Rose, we understand that the decision to pursue a medical negligence claim can be a difficult one. If you or a loved one has suffered harm due to substandard medical treatment, it’s important to know whether your case meets the legal requirements to make a successful claim.
Below, we outline the legal tests that must be satisfied for a medical negligence claim to be successful in England and Wales.
Medical negligence, also known as clinical negligence, occurs when a healthcare professional, such as a doctor, nurse, dentist, or surgeon, fails to provide the standard of care that a reasonably competent professional would have provided under similar circumstances. If this failure results in harm or injury, you may have grounds for a medical negligence claim.
To succeed in a medical negligence claim, you must satisfy three key legal tests: duty of care, breach of duty, and causation. These elements form the foundation of successfully claiming in England and Wales.
Duty of Care - The first step is to establish that the healthcare professional owed you a duty of care. In almost all medical settings, this is straightforward. Doctors, nurses, dentists, and other medical practitioners are legally obligated to provide care that meets an accepted standard.The existence of a duty of care is generally presumed when you are treated by an NHS or private healthcare provider.If you were under the care of a healthcare professional, it is likely that this first test is easily satisfied.
Breach of Duty (The Bolam Test) - Once a duty of care has been established, you must show that the healthcare professional breached that duty by failing to provide the standard of care expected of a reasonably competent professional in their field. This is where the Bolam Test comes into play.According to the Bolam Test (from the landmark case of Bolam v Friern Hospital Management Committee), a healthcare professional is not negligent if their actions would be accepted as proper by a responsible body of medical opinion.In other words, if other competent professionals in the same field would have acted similarly, it is unlikely that the care provided will be deemed negligent. However, a breach may be established if it can be demonstrated that no reasonable body of medical professionals would have acted in the same way.The Bolam Test helps determine whether the standard of care provided fell below what could reasonably be expected.
Causation (The ‘But For’ Test) - Even if you can prove that there was a breach of duty, it is not enough to establish medical negligence unless you can also prove causation. This means showing that the breach of duty directly caused the harm or injury you suffered. The key question is whether the injury or harm would have occurred “but for” the healthcare professional’s negligence. If the injury would have happened regardless of the breach, then causation cannot be established.This can be the most challenging element of a medical negligence claim, especially if the patient was already ill or injured prior to the treatment in question. Causation often requires detailed medical evidence, expert opinions, and careful analysis to demonstrate that the negligence, rather than any pre-existing condition, directly resulted in the harm suffered.
It’s important to note that in civil cases like medical negligence, the legal standard for proving your case is the balance of probabilities. This means that you must demonstrate that it is more likely than not (i.e., over 50%) that the breach of duty caused your injury.
You do not need to prove medical negligence before contacting us. Our specialist medical negligence lawyers can make an initial assessment based on what happened, the treatment you received and the harm you believe it caused.
We will normally want to understand:
what condition, injury or symptoms you had
what treatment, diagnosis or advice you received and when
what you believe should have happened differently
whether there was a delay, incorrect diagnosis, treatment error or other potential failing
what difference this appears to have made to your health, treatment or recovery.
An experienced medical negligence solicitor can often identify at an early stage whether there are realistic issues around breach of duty and causation which justify investigating a claim further. We may then obtain and review your medical records and, where appropriate, seek independent expert medical evidence.
If our initial assessment indicates that your claim has sufficient legal merit, we can discuss taking the investigation forward. Almost all medical negligence claims we accept are handled on a no win, no fee basis, so you will normally not need to fund the investigation of the claim yourself.
Not every treatment mistake results in a viable claim. The important question is not simply whether something went wrong, but whether there is sufficient evidence that the treatment fell below an acceptable standard and that this caused avoidable injury or made your outcome materially worse.
You are not expected to make that assessment yourself. Tell us briefly what happened and the outcome. One of our specialist medical negligence team can consider whether there are sufficient grounds for us to investigate further.
Contact our medical negligence team for an initial assessment of your potential claim.
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