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IV. Under what circumstances can I make a claim for medical negligence?

Doctors and other medical practitioners owe a duty of care to their patients when they are administering medical treatment. However, doctors are not obliged to achieve success with every case that they treat. The duty of doctors is to exercise reasonable skill and care towards each patient when administering medical treatment. Generally speaking, doctors are not deemed to be negligent if they act in accordance with a practice that is accepted as proper by a recognised body of medical opinion, even though a different practice may be adopted by other doctors to treat the same disease or injury.


If a doctor does not follow the usual practice without good reason and this results in injury to a patient, then it is likely that the doctor has breached the duty of care requirement, and will be found to have been negligent.


The following three elements must be established in determining a breach of duty :


  1. There is a usual and normal practice (as justified by precedent cases or approved by recognised medical bodies) for conducting the medical treatment in question; and
  2. the doctor responsible did not use that normal practice; and
  3. the practice that the doctor adopted, or the method he used, is one that no person in that profession with ordinary skill would have used if they had been acting with ordinary care (examples include a doctor ignoring an important step in the treatment, or applying a treatment in a way that no other reasonable doctor would have done).

However, in many instances of medical treatment or operation, there is no uniform "general and approved practice". Rather, there may be different respectable schools of thought on the treatment that can be administered for a particular kind of decease or injury. If a doctor acts in accordance with one of these schools of thought, then that doctor is unlikely to be found liable for negligence merely because there is a body of opinion that would take a contrary view. After considering all of the evidence, including explanations of relevant medical reports, it is ultimately for the Court, rather than medical experts, to determine whether the defendant is liable for medical negligence.


When there are multiple causes for a patient's medical condition in addition to the alleged negligence of the doctor (that is, more than one factor contributed to the patient's injury or illness), then the patient's claim for medical negligence will only succeed and may only result in full compensation if the alleged negligence of the doctor can be proven to have materially contributed to the injury suffered by that patient.


People who suffer injury from a medical accident are often emotional and upset. Blaming the doctor may appear to be the only recourse. The seriousness of the original medical complaint, and the risks frequently involved in the medical treatment, may be forgotten. You must accept that your belief, however strongly held, that a doctor is to blame for a medical accident, is irrelevant under the law. A claim will not succeed unless it is proved, on the balance of probability (i.e. more than 50%), that:


  1. there were serious errors in your medical treatment which no competent doctor would have made and that the alleged facts, including the injury and resulting loss, are true; and
  2. a duty of care was owed to the claimant by the doctor (or other health carer) accused; and
  3. there was (i) a breach of that duty which (ii) caused or materially contributed to the claimant's injury and loss, i.e., that there was negligence.

The idea that any patient who experiences any adverse effects resulting froma medical treatment can successfully bring a claim for medical negligence is somewhat misconceived. Medical negligence claims explore much more complex issues, such as the standard of care provided and the performance of the medical professional in question.


The emphasis of the claim is placed not on the result of any care provided, but on the standard of that care. The claimant needs to demonstrate that the standard of the care provided was below that expected of a trained professional. It is not enough for a patient to merely demonstrate that they received substandard care, or that the results of the treatment were poor. They must be able to prove that it was the poor performance of a medical professional that caused the unsatisfactory result. This process is known as establishing causation and is usually based on the evidence of an expert witness. It is this stage, proving that there isa direct link between the actions of a medical professional and the harm a patient is experiencing, which often proves to be the most difficult aspect of a medical negligence claim.