Liability

Duty of care

The following issues need to be considered in every clinical negligence claim:

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

There are two elements to establishing breach of duty of care:

1. •

   firstly, determining the appropriate standard of care, and

2. •

   secondly, proving that the conduct in question fell below that standard

The claimant has the burden of establishing breach of duty resulting in injury on the balance of probabilities.

For further guidance, see Practice Note: Duty of care and breach in clinical negligence claims.

Causation

An injury resulting from clinical negligence does not automatically mean a claimant will be awarded