You’d expect the answer to “what is the negligence in clinical negligence” to be straightforward. Like a car accident. Someone crushes your rear bumper. Unless there’s a really good explanation, that driver’s negligent. A restaurant serves you meat that’s gone off. Your sick. The restaurant’s negligent.
In a clinical context – hospital, GP, dentist, physio, optician – NHS or private – negligence isn’t so black and white. Solicitors get it wrong. Barristers get it wrong. Judges get it wrong. This isn’t a criticism. It’s a statement of fact.
I will do my best to explain, and illustrate, how the Courts approach the issue of negligence in the clinical context.
This is a short post. Academics write books about this. Legal theorists debate this. What I set out here is, at best, an introduction.
Case study: inherited blood disorder with a high risk of blood clotting
To help illustrate what is negligence, and what is not negligence, here is a tragic case.
A young woman, diagnosed in childhood with a rare blood disorder, developed a fatal pulmonary embolism (PE). The PE developed from a blood clot. The blood clot resulted from her blood disorder.
The issue doesn’t relate to treatment of the PE, or the diagnosis of the PE.
The issue relates to treatment and management of the blood disorder. Neither the hospital which diagnosed the blood disorder, nor her GP, did anything at all to manage her condition, from the day of her diagnosis aged 2, to the day of her death, aged 26. When I say, they didn’t do anything, that is a painful truth. In hundreds of pages of medical records, there is nothing at all about the advice, management, or treatment, of the blood disorder, except for the diagnosis noted in the GP records.
Did the absence of treatment and management of her blood disorder – known to carry a shockingly high risk of her blood clotting – amount to negligence?
To you and I, surely, this looks like negligence.
Negligence and breach of duty
Before going further, we need to clarify the legal terms used.
Negligence – in a clinical context – isn’t one legal concept, but two:
- Breach of duty
The Claimant must prove not only that the doctor responsible failed in their duty to the patient (the Claimant), but also that that failure caused the patient damage (injury/loss).
If the doctor’s mistake made no difference – if, even though the doctor did make a mistake, the same outcome would have resulted, there is no negligence.
The Claimant must prove breach of duty and causation.
But, all cases start with breach of duty.
Breach of duty is what everyone – other than the lawyers – would understand as negligence. Did the doctor (or other clinician) do something the law recognises as wrong? Is the doctor at fault/to blame?
How is breach of duty assessed?
The starting point to answer the question is what is known as the Bolam Test. This follows the case of Bolam v Frien Hospital Management Committee, reported in 1957 – still the law.
The Bolam test uses the kind of language only lawyers use:
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
What does this mean?
It means that if two doctors would treat the same patient in a different way, neither will be negligent – neither will have breached their duty to the patient.
To you and I this can be mindboggling!
Indeed, let’s return to the tragic story of the young woman with the blood disorder.
How, you will ask, can the doctors responsible for the care of the young woman, not be negligent, when they did nothing at all to prevent the blood clot that caused her death?
The shocking answer to this question relates to the Bolam test.
Blood disorders – clotting disorders – disorders of the blood that present the patient with a risk of blood clots – Deep Vein Thrombosis (DVT), PEs – are only treated in one way, that is, with anticoagulants (for instance, Warfarin). The haematology community in the UK do not recommend the use of anticoagulants as a preventative treatment, even if it may prevent a blood clot.
This young woman’s blood disorder was at the highest end of risk. By that I mean, within her own family – parents, siblings, cousins, children of siblings and children of cousins – the same blood disorder caused numerous DVTs, and some life-threatening PEs.
This young woman’s risk of developing a DVT was more than 50% by the age of 55. Infact, within the context of her own family, the risk was much higher (all those, which was almost everyone in the family, who had clots, had their first clot during their early adulthood).
This makes me – as a non-doctor – think that surely there was/is risk balancing to be done – surely, the risk balance in the UK that precludes preventative use of anticoagulants, is plain wrong, when it is known that the risk of life-threatening “events” – as the doctors call them – is astronomically high – which in this family, was the case?
Indeed, I know that outside the UK, at least one eminent haematology doctor, would consider preventative prescription of anticoagulants.
Unfortunately, whatever my view may be, even if that outside UK eminent haematologist is completely right, and even if his approach is a blueprint of common sense and good clinical practice – which, on paper, is looks like to me – the Bolam test means the death of this young woman was not the fault of her doctors.
The doctors – who collectively did nothing – have a complete defence – the haematology community in the UK do not recommend she should have been given anticoagulants – they do not even recommend further investigation, further discussion, or further advice. There was no breach of duty, no negligence.
What is negligence, and what is not negligence, in clinical negligence
If you cannot get over the Bolam test, your case will not succeed (that is the basic story, although there is a little more to it – but that will have to wait for another post).
Equally, there is that causation issue.
In the tragic case of the young woman, if there was evidence that she should have been prescribed preventative anticoagulants, but even if she had been, she would have died, that would be the causation problem.
Even if a doctor breached their duty to the patient, but the patient’s outcome would be unchanged, the claim will fail – there is no clinical negligence.
The purpose of this post is to help to give some idea of the intricacy and difficulty of assessing negligence in the clinical context.
What you and I think of a negligence often doesn’t translate into the clinical negligence context.
For this reason, clinical negligence cases are often difficult, closely contested, and have uncertain outcomes, even when the Claimant, and the lawyers, believe justice ought to mean a patient (or their family) should be awarded substantial recompense following an unforeseen and life-changing medical complication.
If we can help you to investigate a possible case of clinical negligence, email or call –
Or all the Dunstable office 01582 417208
Or call Talha in the London office 0207 790 7311
John Holtom, Consultant Solicitor, specialist in Clinical Negligence and Serious Personal Injury claims for 30 years.