Clinical Negligence: a note on the law

The law in Scotland imposes on us all a general duty to take reasonable care in many of our day-to-day activities. The general principals of the test were set out in the famous case of Donoghue v Stevenson (the Paisley 'snail' case) where the House of Lords held that a duty to take 'reasonable care' is owed to any person who could foreseeably be affected by one's action or inaction. The test of 'reasonable care' is quite a broad one.

The test for medical negligence is narrower, and is set out in the case of Hunter v Hanley. It was stated that the 'true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care'. In other words, a mistake made by the practitioner must be an error which no competent doctor in that field would have made. 

Lord Clyde stated:

'To establish liability by a doctor where departure from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care'

Only if a practitioner has failed to meet the minimum acceptable practice, will they be considered to have acted negligently. A failure to meet the best practice possible, or gold standard, is not enough. If the practitioner can show that the course of action he or she chose is supported by a body of respectable opinion within the profession, then negligence may not be established.

If you believe you may have a claim for compensation arising from medical negligence, it is important to remember that to prove a case of medical negligence there are two hurdles to overcome. The first is liability (or negligence, as discussed above). The second is causation of damage. You must be able to show that the negligence of the doctor (or other medical professional) caused, or materially contributed to the bad outcome.

In order to do this, a report from the relevant expert must be obtained, (e.g. if you allege negligence by your general practitioner, a report from an independent GP will be required).

The burden of proof lies with the pursuer, meaning it is up to the person raising the action to prove that the negligence caused the injury or damage. This can be difficult in cases which are medically and scientifically complicated, where the medical condition may have a variety of different causes and symptoms. 

To prove causation the pursuer must show that, on the balance of probabilities, the alleged negligence caused the damage.

Pursuers must of course be able to prove that they have suffered a loss of some form, i.e. that 'but for' the negligence of the medical professional involved, the eventual outcome would have been better in some way. It is not sufficient to raise a claim due to negligence alone, if the outcome would have been the same in any event (e.g. the administration of the wrong dose of a drug which fortunately has no ill effects).

One other factor potential pursuers must bear in mind (and possibly the most important when contemplating litigation) is the time bar for raising clinical negligence actions. Generally speaking, the time limit for raising proceedings is three years from the date of the injury. The time limit can be extended in particular situations, for example: if the patient was a child; did not have capacity; or it was not immediately apparent to the patient that they had suffered an injury. In the latter set of circumstances, the three year time bar would commence from the date on which the patient could reasonably have been expected to know that they had suffered the injury.