Clinical negligence or just bad service?

We are all aware of the problems besetting the NHS in recent years, the massively long waiting lists, shortage of GP’s, shortage of nurses and hospital Doctors and shortage of resources such as MRI machines. We have heard about hospitals failing to meet A&E turnaround targets and elderly patients causing “bed blocking”.  We all know someone who says they cannot get a GP appointment or a referral to a specialist or a scan or who is waiting years for an essential elective surgery.

Many of us have suffered or know someone who is struggling with symptoms for which they cannot get a diagnosis. The NHS was creaking before COVID but never seemed to recover from that and now is beset by industrial action by junior doctors and consultants and nurses.

If you or your family have been in any of the above situations, you can be sure that that this all represents a terrible level of service and if you are a tax payer you surely would be entitled to think that you are not getting value for your money when having paid national insurance all your life, you now have to fork out thousands to have your knee replacement done privately or sit on the  NHS waiting list when in the meantime your overall heath suffers a major set back as a result.

But – does all this amount to clinical negligence?

Certainly, some would say it is negligent in the wider sense but to meet the legal definition of clinical negligence is much harder than you might think.

There are 3 criteria you, as a claimant, must prove if you are considering making a claim for clinical negligence.

First, you must prove there has been a breach of the duty of care. The legal test for this is in summary that, if a doctor reached the standard of a responsible body of medical opinion, he was not negligent. So a doctor is allowed to make a judgement, which turns out to be wrong, if a reasonable number of other similarly qualified doctors would have made the same judgement in the circumstances, even if they are in the minority. Therefore, if, based on your symptoms, your GP thinks you have a certain condition, but it subsequently turned out you had a different condition, but he was actually going through the same process of elimination which other doctors would have followed, then he will not be negligent even though he was wrong, and this caused a delay in effective treatment.

Secondly, you must prove is that there has been some damage arising from what you think is the negligent act or omission. If, for example, a hospital doctor, in breach of the duty of care failed to diagnose a undisplaced fracture in a bone of a patient who is in a coma after a car crash. By the time the patients eventually emerged from the coma the fracture had healed by itself with no treatment and no ill effects. So, although there has been a breach of the duty of care there is no, or at least, minimal damage.

Finally, the Claimant must prove that the breach has caused the damage. This is often not as straightforward as it sounds. This might happen for example if there was a negligent delay in treatment of a leg fracture in an accident, following which the condition of the leg deteriorated and had to be amputated. Subsequently the evidence showed that the leg was so badly damaged it would have needed to be amputated in any event notwithstanding the delay. So there is a breach of duty and damage (the amputation) but the breach has not caused the damage.

There is still a backlog for treatment across a huge range of services in the NHS which is to a large degree a still indirectly a result of the pandemic and it does seem inevitable that unrelenting pressure on systems and individuals is going to result in negligence occurring.  Whether or not the NHS is going to be able to rely on the pandemic as a defence in many cases is still uncertain. It is very unlikely that the Courts will say that in every case where that has been a delay caused by Covid, either directly or indirectly, that this is negligence because this would open the flood gates to litigation which would overwhelm public finances. On the other hand, each case will still have to be assessed on its own merits and success will be dependant upon the specific facts on the case.

If you think that you or a family member or friend have suffered bad service from the NHS which has resulted in serious injury and or financial losses, we would be happy to discuss this with you.


If you have suffered clinical negligence, get in touch with Penny Langdon today by email or by phone on 020 8290 7958.