The following PI & Clinical Negligence guidance note Produced in partnership with Sarah Fraser Butlin of Cloisters Chambers provides comprehensive and up to date legal information covering:
If an injury was in fact caused by an act of clinical negligence, that does not mean the courts will award damages to the claimant against the negligent clinician. The tort only results in damages if all elements of it are proven:
duty of care
breach of that duty
causation ie the breach caused loss, and
Remoteness of loss and foreseeability are slippery concepts that run through every element of the stages set out above. They are the judicial tools by which common sense and policy are exercised.
Where, but for the clinical negligence, the claimant had a chance of recovering without adverse consequences or had a good chance of a cure, how do the courts approach causation and what damages are awarded? These are matters of causation mixed with remoteness.
In Hotson v East Berkshire Area Health Authority a 13-year-old fell from a tree, fracturing his left femoral epiphysis. At hospital his condition was not diagnosed for five days and he developed avascular necrosis, resulting in disability in his hip. The health authority admitted negligence but the trial judge found there was a high probability, assessed at 75%, that the condition would have developed anyway. He awarded damages on the basis of a 25% chance that the condition would not
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