What do I need to prove to be successful in a medical negligence case?
In Scotland, in order to successfully make a claim for medical negligence you must be able to satisfy a legal negligence test. There is no automatic entitlement to compensation.
Please click on the video and Elizabeth Rose will explain the legal test for negligence.
How do I make a successful Claim?
For a claim for compensation to succeed, you will need to address two key elements of the legal negligence test.
1. Negligence (breach of duty by the medical professional)
2. Causation (whether the injury was a result of the negligence)
How do you prove medical negligence?
1. Establishing a breach of duty
Firstly, in respect to negligence, in general you must be able to establish that the medical professional (such as, but not limited to, a dentist, doctor, nurse, optometrist, physiotherapist) is guilty of a failure that no medical professional of ordinary skill would make if acting with ordinary care. Specifically, this refers to three criteria:
- There is a usual and normal practice
- They didn’t adopt that practice
- The course that was taken was one which no professional person of ordinary skill would have taken if he had been acting with ordinary care. In the legal world, this is known as the Hunter v Hanley test.
2. Proving causation
Secondly, you must be able to prove causation. In simple terms, this is showing that the negligence directly caused an injury. Alternatively, in some cases, this could mean proving the negligence materially contributed to the injury. In other words, you must show how the outcome would have been improved had the negligence not taken place
In Scotland, proving wrongdoing on it is own does not mean you will obtain compensation. You must be able to demonstrate that this wrongdoing has caused an injury, that otherwise wouldn’t have happened had you received competent care. If the negligence didn’t make any difference to the outcome, then the case cannot succeed.
3. Independent expert support for your claim
Finally, to prove negligence, you must have a supportive expert report prepared by an independent expert who is in the same field as the wrongdoer. For example, if it’s GP negligence, you need a GP expert to provide an opinion on the actions of a GP.
Likewise, for causation, you require an independent expert report in the appropriate discipline to comment on whether you have more likely than not (the balance of probabilities test) sustained an injury as a result of the negligence. It is common for there to be a number of expert reports instructed on one case.
For more information please watch our video