Clinical Negligence

Duty of Care — Healthcare providers owe a non-delegable duty of care to their patients. The duty arises from the assumption of responsibility when a clinician undertakes to treat a patient. NHS Trusts are vicariously liable for the acts of their employed clinicians; GP partnerships are liable for their partners and employees.

Standard of Care (Bolam) — The test is whether the defendant acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art (Bolam v Friern [1957]). Expert evidence is essential; a claimant must establish that no responsible body of medical opinion would have acted as the defendant did.

Logical Basis Requirement (Bolitho) — Where a defendant relies on a responsible body of expert opinion, the court must be satisfied that the opinion has a logical basis — the experts must have directed their minds to the comparative risks and benefits and have reached a defensible conclusion (Bolitho v City and Hackney [1998]).

Informed Consent (Montgomery) — A doctor must take reasonable care to ensure the patient is aware of any material risks in the proposed treatment and of reasonable alternative or variant treatments. Risk is 'material' if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is aware the particular patient would (Montgomery v Lanarkshire [2015]).

Causation — 'But for' causation applies: the claimant must show that but for the negligence, the harm would not have occurred. In clinical cases this is often the most difficult hurdle. Where negligence has caused the loss of a chance of a better medical outcome, the approach is less clear after Gregg v Scott [2005].

Loss of Chance and Material Contribution — In some cases (particularly delayed diagnosis) courts will find a 'material contribution' to the risk of injury (Bailey v Ministry of Defence [2008]). Chester v Afshar [2004] extended the causation rules for informed consent cases: where a patient is not warned of a risk that materialises, causation is established even if the patient would have eventually had the same procedure.

Limitation — The limitation period is three years from the date of injury or the claimant's 'date of knowledge' — when they first had knowledge (or could reasonably have acquired it) that the injury was significant, attributable to the act or omission alleged, and caused by the defendant (Limitation Act 1980 s.14). The court has a residual discretion to disapply the limitation period under s.33.

NHS Resolution and Pre-Action Protocol — Most NHS clinical negligence claims are handled by NHS Resolution (formerly the NHSLA). The Pre-Action Protocol for the Resolution of Clinical Disputes requires letters of claim and response, with a lengthy exchange phase designed to encourage early settlement and avoid unnecessary litigation.