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

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

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

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.

Duty to third parties

A medical practitioner may owe a duty of care to a non-patient in certain circumstances but only where there is a relationship of close proximity between the claimant and defendant.

In the cases of Thake v Maurice and McFarlane v Tayside the wives of men who had undergone failed vasectomies were able to claim damages for subsequent pregnancies. By contrast, in Goodwill v British Pregnancy Advisory Service, there was no sufficiently proximal relationship between the defendants and a woman who had later entered into a relationship with a man who had undergone a vasectomy for a duty

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