To be successful in obtaining compensation, there are two tests to satisfy:
- Has the medical person involved breached his/her duty of care to you?
- If so, has this Breach of Duty led to a foreseeable injury over and above that which you would have suffered in any event?
Both these tests must be satisfied before investigations into any condition, prognosis and value of the claim can be fully undertaken. Without satisfying both of these tests, the claim will not be successful.
Breach of Duty
In assessing whether the care provided by the clinician has been negligent, the court must determine whether a reasonably competent practitioner in the relevant field at the same time faced with identical circumstances would have acted in the same way.
If it is possible to show that a reasonable and competent body of medical opinion (even if it is only a few practitioners) would have acted in the same way, then the care would not be considered negligent.
It is important to note that imperfect care does not necessarily mean that a Breach of Duty has occurred and is, therefore, not necessarily negligent.
If a Breach of Duty of care is found, you must then prove that this breach led to significant deterioration or additional injury over and above that which you would have suffered in any event. The test in this respect is known as the ‘balance of probabilities’, i.e. that there is a greater than 51% chance that injuries suffered were as a result of the negligence.
It is often difficult to prove causation, i.e. what additional injury has been suffered. In a claim for a broken leg sustained in a road traffic accident, it is clear that you would not have been driving with a broken leg and therefore the leg was broken in the accident. However, in medical negligence claims this is more difficult as you are seeking hospital treatment for a condition that you already have, which has not been negligently caused and as such the additional injury suffered is not as clear.
In order to bring a successful claim, the opinions of Medical Experts are required to determine the issue of Beach of Duty and Causation. T G Baynes Solicitors have a good working relationship with many medical experts who are top of their field, in a variety of specialisms. We also have close ties with charities, such Action Against Victims of Medical Accidents (AVMA), for which members of our team volunteer on their telephone helpline.
Expert evidence would also be required to support financial losses suffered as a consequence of the injury. Financial compensation could include loss of earnings, carers, treatment costs and future needs.