Negligence

For an allegation of negligence to succeed claimant must prove
- The defendant had a duty of care to the claimant
- There was a breach of the duty of care
- The claimant suffered actionable harm or damage
- The damage was caused by the breach

All health care professional have a duty to become and remain competent
Level of skill will depend on experience and seniority of the professional
If a senior delegates responsibility to a junior he must be sure the junior is competent
Otherwise he remains responsible for any resulting error - vicarious liability

A breach occurs if the healthcare professional fails to reach the proficiency of his peers
This is known as the Bolam test
Applies equally in treatment, diagnosis and advice
The breach can be:
- Something done - commission
- Something not done - omission
A doctor can not be negligent if he acted in accordance with relevant professional opinion
Applies even if other doctors would have adopted a different practice
Ignorance is not a defence for negligence
Errors of clinical judgement (e.g. wrong diagnosis) often do not amount to negligence

This is the disability, loss or injury suffered by the claimant
However negligent the defendant has been the claimant must have suffered quantifiable harm
Quantifiable harm includes:
- Loss of earnings
- Reduced quality or quantity of life
- Disfigurement
- Disability
- Mental anguish
There may also be an element of contributory negligence
This occurs if actions of the claimant is judged to have made the situation worse
Can reduce the amount of damages awarded

The burden of proof lies with the claimant
The standard of proof is the civil standard - balance of probabilities
Actions must be brought within 3 years
Different rules apply for children and mentally ill
If a claim is brought the solicitor issues a Letter of Claim
A Letter of Response should be provided within 3 months
If the cases continues Claim forms are raised by the solicitor and submitted to the court

The Woolf report in 1994 noted that in medical negligence cases
- There was a disproportionate relationship between costs and amounts awarded
- There were long delays in the settling of claims
- Unmeritorious cases were pursued
- Clear-cut cases were defended longer than should have been
- Success rate was lower than for any other personal injury litigation
- There was less co-operation between opposing parties
90% of litigants were legally aided
He proposed
- Case management by the courts
- Alternative means of dispute resolution
- Court-based experts
- Judges with specialist medical knowledge
The future may include
- No-fault compensation
- Early settlement using fixed tariffs depending on injury causes
- Greater use of mediation to settle disputes