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Establishing a clinical negligence claim is different from other personal injury claims. To succeed in a Clinical Negligence claim it is necessary to prove three things:
- That a duty of care was owed by the healthcare professional
- The duty was breached
- The breach caused loss and damage
Duty of Care
Medical professionals owe their patients a duty of care. Therefore this element is usually relatively straightforward to prove.
Breach of Duty
It is necessary to show that whatever the healthcare professional did or did not do, fell below an acceptable standard, or rather failed to come up to a standard reasonably expected by other medical practitioners, also skilled in that field.
Establishing such a breach is dependent on the circumstances of each case. In some cases there will be a presumption that the medical professional breached their duty and it will be up to them to prove otherwise, by way of an extreme example would be where the wrong limb is amputated. In other circumstances where a breach is not necessarily so obvious, it is necessary to rely on a body of medical opinion who disagree with the doctors actions.
The Breach caused loss and damage
It is not enough to show that you have suffered an injury. The law requires you to establish that your injury was caused as a direct result of the doctors actions, or that those actions made a significant contribution to your injury.
Once this has been established it is necessary to show that you have suffered loss and damage. This may include physical and psychiatric injury as well as financial expenses and losses such as loss of earnings and future healthcare provision.