Key Facts

Medical negligence law protects patients who suffer harm due to substandard care while providing a framework within which healthcare professionals can practise without fear of liability for honest clinical judgement.

Elements of Negligence

1. Duty of care: established by the doctor-patient relationship (begins on acceptance of care)
2. Breach of duty: failure to meet the required standard of care
3. Causation: the breach caused (or materially contributed to) the harm
4. Damage: the patient suffered actual harm (physical, psychological, financial)

Standard of Care

• Bolam v Friern Hospital (1957): doctor not negligent if acting in accordance with practice accepted by a responsible body of medical opinion, even if other doctors would have acted differently
• Bolitho v City and Hackney (1998): the court can assess whether the body of opinion is logically defensible (Bolam is not a complete defence if the practice is illogical)
• Montgomery (2015): for consent and disclosure, the standard is patient-centred, not doctor-centred

Causation

• 'But for' test: would the harm have occurred but for the breach? If yes, no causation
• Material contribution: if the breach materially contributed to the harm (even if not sole cause)
• Loss of chance: some recognition in clinical negligence (Chester v Afshar 2004 — modified causation for consent cases)

Limitation Period

• 3 years from date of injury (or date of knowledge)
• Extended for children (3 years from 18th birthday)
• No limitation for those lacking capacity

Common Areas of Clinical Negligence Claims

• Delayed diagnosis (particularly cancer)
• Surgical errors and complications
• Medication errors (wrong drug, wrong dose, drug interactions)
• Failure to act on test results
• Inadequate consent (Montgomery)
• Obstetric complications (cerebral palsy claims are highest value)
• Missed fractures in A&E
• Failure to refer appropriately

Duty of Candour

• Statutory duty (Health and Social Care Act 2008, Regulation 20)
• When a notifiable safety incident occurs:
  1. Inform the patient (or family) as soon as reasonably practicable
  2. Provide a truthful account of what happened
  3. Offer an apology
  4. Provide support
  5. Document everything
• Professional duty (GMC): be open and honest when things go wrong
• An apology is NOT an admission of liability (Compensation Act 2006)

Red Flags for Potential Negligence

• Significant deviation from accepted practice without justification
• Failure to follow NICE guidelines without documented clinical reasoning
• Failure to act on abnormal investigation results
• Inadequate documentation
• Failure to escalate deteriorating patient
• System failures (wrong-site surgery, never events)

Investigation of Incidents

• Incident reporting: DATIX/national reporting system
• Root cause analysis (RCA): systematic investigation of serious incidents
• Structured Judgement Review: methodology for reviewing care
• Coroner's inquest: if death is unexpected, violent, or in custody
• GMC investigation: if fitness to practise concerns
• NHS Resolution: manages claims, provides learning

Documentation

• Contemporaneous, accurate, legible medical records are the best defence
• Document clinical reasoning, differential diagnoses, discussions with patients
• Record consent discussions (not just the form)
• Document safety-netting advice given
• Record telephone consultations and advice given

Prevention of Negligence Claims

• Maintain competence through CPD
• Follow evidence-based guidelines (document departures with reasoning)
• Communicate effectively with patients
• Practice thorough informed consent (Montgomery)
• Document clearly and contemporaneously
• Respond to complaints promptly and openly
• Learn from near misses and serious incidents
• Participate in clinical governance (audit, M&M meetings)

Responding to a Claim

• Notify medical defence organisation immediately
• Notify trust/employer
• Do not discuss the case with colleagues (beyond clinical need)
• Preserve all relevant records
• Cooperate with investigation
• Seek personal support (psychological impact can be significant)

Referral/Support

• Medical defence organisation (MDU, MPS, MDDUS): immediate advice and legal support
• NHS Resolution: handles claims on behalf of NHS trusts
• GMC: separate regulatory process (fitness to practise)
• Practitioner Health Programme: support for affected doctors

• NHS clinical negligence claims cost approximately £2.4 billion/year (2022/23)
• Obstetrics accounts for approximately 50% of total claims value (though only 12% of claims by number)
• Most claims are settled or discontinued; fewer than 2% proceed to trial
• Delay in diagnosis claims are increasing in proportion
• Good communication and duty of candour reduce claims: patients who feel listened to are less likely to litigate
• The emotional impact on healthcare professionals involved in claims is significant ('second victim' phenomenon)

Key Medical Negligence Cases

Never Events (Examples)