Medical negligence claims: proving a breach of duty

What "breach of duty" actually means

In clinical negligence, you are not simply arguing that treatment went badly. You must show that the care you received fell below a standard that a responsible body of medical opinion would consider acceptable. The first hurdle is duty of care: a clinician, hospital trust, GP practice or ambulance service owed you a duty because they took you on as a patient, or because they were responsible for your care at the relevant time. That part is usually straightforward.

Breach of duty is the harder question. The test most often applied comes from Bolam v Friern Hospital Management Committee (1957), refined by Bolitho v City and Hackney Health Authority (1997). A doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even if other clinicians would have done something differently. But that body of opinion must be capable of withstanding logical scrutiny. A court can reject an expert view that is internally inconsistent or plainly unreasonable.

The four elements you must prove

To succeed in a claim, you generally need to establish all of the following:

• Duty of care – that the defendant owed you a legal duty.
• Breach – that the standard of care fell below what was reasonably expected.
• Causation – that the breach made a material contribution to your injury, and that the injury would probably not have happened otherwise.
• Damage – that you suffered a recognised injury, loss or expense as a result.

Causation is where many otherwise strong cases falter. It is not enough that a mistake occurred. You must show, on the balance of probabilities (more likely than not, so over 50 per cent), that the outcome would have been different with proper care. In cases involving delayed diagnosis of cancer, for example, the question becomes whether earlier treatment would probably have changed the prognosis. That is a question for expert oncologists, not for lawyers alone.

Why expert evidence usually decides the case

Almost every clinical negligence claim relies on independent medical experts. Typically you will need at least one expert on breach of duty – someone in the same specialty as the clinician being criticised – and often a separate expert on causation. In complex cases, such as birth injury or spinal surgery claims, several disciplines may be involved.

Expert witnesses owe a duty to the court, not to the side instructing them. They must give balanced opinions and be prepared to concede points. Their report will address the medical records, the applicable guidelines and standards at the time of treatment, and whether the care departed from them. Guidelines from bodies such as NICE are persuasive but not automatically decisive: a clinician may depart from them with good reason, and the court will ask why.

If your case proceeds, the court may direct that experts from both sides meet and produce a joint statement setting out what is agreed and what remains in dispute. This often narrows the issues considerably and can lead to settlement before trial.

The pre-action process

Clinical negligence claims in England and Wales are governed by the Pre-Action Protocol for the Resolution of Clinical Disputes. Before issuing court proceedings, you should send a detailed letter of claim setting out the allegations, the injuries and the losses claimed. The defendant then has a period – usually four months – to investigate and respond with a letter of response, admitting or denying breach and causation.

This stage matters for practical reasons. It gives both sides the chance to assess the strength of the evidence, and it encourages early settlement where liability is clear. It also means that your medical records need to be obtained early. You have a right of access to your records under data protection law, and requests should be made in writing to the relevant records department.

Time limits: strict and unforgiving

For adults in England and Wales, the limitation period for clinical negligence is three years under the Limitation Act 1980. That period runs from the date of the negligent treatment, or from the date you first had knowledge of the injury and that it was caused by the treatment – whichever is later. Working out the "date of knowledge" can be complex, but you should never assume you have more time than you think.

There are important exceptions:

• Children have three years from their eighteenth birthday, so a claim can usually be brought up to age 21.
• Patients lacking mental capacity may have the limitation period extended indefinitely.
• Fatal claims follow special rules, with three years generally running from the date of death.
• The court has a discretion to extend time, but it is exercised sparingly and you should not rely on it.

Because medical records, witness recollections and expert availability all become harder to secure over time, it is sensible to seek advice well within the three-year window – ideally within months of suspecting a problem.

Practical steps to take now

Write down what happened while your memory is fresh, including dates, names and appointments. Request your full medical records, including GP notes, hospital notes, scans and correspondence. Keep a note of any time off work, care you have needed, travel costs and treatment you have paid for, as these form part of your claim. If a child or a person lacking capacity is affected, ask about Legal Aid, which remains available for certain clinical negligence cases involving neurological injury in babies.

Finally, be realistic. Not every poor outcome is negligent, and lawyers who specialise in this field will tell you honestly when the evidence does not support a claim. A free initial conversation with a solicitor who handles clinical negligence is the quickest way to understand whether you have a case worth pursuing, and what it would involve.