Duty of care and breach in clinical negligence claims
Produced in partnership with Andrew Ritchie QC of 9 Gough Square
Duty of care and breach in clinical negligence claims

The following PI & Clinical Negligence guidance note Produced in partnership with Andrew Ritchie QC of 9 Gough Square provides comprehensive and up to date legal information covering:

  • Duty of care and breach in clinical negligence claims
  • The duty of care
  • The standard of care
  • Breach of duty
  • Junior doctors and senior doctors
  • Non-clinical staff
  • Defendant’s task—the ‘Bolam test’
  • Burden of proof

The duty of care

A medical practitioner owes a duty of care to their patient. This duty is to take reasonable care to:

  1. take a proper history

  2. investigate the patient’s symptoms and complaints properly

  3. make proper differential diagnoses

  4. make any necessary referrals to specialists

  5. initiate action in order to take all reasonable steps to procure the health of the patient

  6. provide a reasonable course of treatment

  7. follow up with the patient afterwards if that is reasonably necessary

The duty of care is based on the clinician assuming responsibility for their patient’s care. As a result, once a medical practitioner and patient relationship is established, there is a duty to take care and to act. This means that a doctor may be liable for a negligent omission to act.

The clinician is judged within the context of their clinical field and in accordance with the views of their colleagues.

There are two elements to establishing a claim for breach of duty of care:

  1. firstly, the appropriate standard of care must be determined

  2. secondly, the claimant must establish that the conduct in question fell below that standard

The standard of care

Standard of care and duty of care are tied up with causation and injury. Lord MacMillan in Donoghue v Stevenson stated:

‘The law takes no cognizance of carelessness in the abstract. It concerns