Negligence – FAQs

What does duty of care mean ?

Duty of care is a core concept in negligence.  A duty of care can be thought of a duty that exists where there is a special relationship between two persons or organisations.Duties of care come into existence all the time in our daily lives and can often be fleeting.  When driving your car, for example, you owe a duty of care to other road users and passengers you come into contact with.  If you receive professional services, the professional will owe a duty of care to the customer and because the relationship is often contractual in nature, it is often not difficult to prove the existence of a duty of care in professional circumstances.

If a duty of care is established, the courts will assess whether a reasonable standard of care in performing the duty has been displayed.  The standard test is the reasonable man test.  The court will ask what standard of care the reasonable man would have displayed given the circumstances and characteristics of the respondent.  Age, for example, can be relevant; the standard of care expected from a 12 year old is different to that of a fully grown, mentally capable adult.

What is the definition of medical negligence ?

Medical negligence at a base level operates on the basic principles of negligence.  There must be a duty of care between the doctor and the patient, there must be a breach of that duty and it must be fair, just and reasonable to impose a duty given the circumstances.  In addition, you must have suffered some kind of injury as a result of the breach of duty.  In practice, it is not difficult to establish a duty of care between a doctor and a patient.  It is, however, difficult to establish a breach of that duty.  Whilst doctors are under a duty to take reasonable care in treating their patients, the courts do not generally like to assess what medical treatment was necessary given the circumstances.  The courts will ask whether there is a reasonable body of medical opinion which supports the doctors actions and where there is, there will be no breach.  Proving the existence of a reasonable body of medical opinion will inevitably rely on the opinions of expert witnesses and other medical professionals.  Whilst this definition might seem off putting, you should always seek legal advice where you believe you have received a substandard level of medical care.

Who do I bring a medical negligence claim against ?

In the majority of cases, your claim will be against the relevant NHS trust in your area, rather than the doctors or nurses themselves.  If you have received private treatment, the position is generally the same; your claim will lie against the hospital or clinic where you received treatment.  In a few rare instances, your claim may lie against the doctor where the doctor does not belong to a particular organisation or where treatment has been given outside the bounds of  usual NHS treatment.

Who do I bring a claim against for professional negligence claims ?

If you have received a negligent level of service from professionals, including solicitors, accountants, surveyors, architects and the like, your claim will generally lie against the professionals insurers.