What is Breach of Duty in Medical Negligence?

Unfortunately, the fact that a patient has a poor outcome from treatment or a procedure isn’t sufficient to succeed in a medical negligence claim.  

To make a successful medical negligence claim, the treatment you received from your healthcare provider must have fallen below the expected standard. This is a legal principle known as ‘breach of duty of care’.

Below, we’ll explain what this means and how it applies in medical negligence claims.

What is a duty of care?

It is accepted, in law, that a medical professional treating you owes you duty of care.

The law places a duty of care on the practitioner in circumstances where it is ‘reasonably foreseeable’ that they might cause harm to patients through their acts or omissions. A duty of care is owed when the practitioner assumes responsibility for the patient’s care. This is the case whether the practitioner is a GP, specialist, nurse, dentist or midwife.

The importance of the duty of care in a medical setting cannot be overstated; it seeks to ensure that individuals receive treatment which meets an acceptable professional standard to minimise the risk of avoidable harm. As such, safeguarding and the duty of care go hand in hand.

The question of whether the medical practitioner owes a duty of care to the patient is rarely an issue in a clinical negligence case. The more important issue is whether the duty of care has been breached.

What is breach of duty of care?

The law expects that the care is of a minimum standard for it to be acceptable. A breach of the duty of care is when the care falls below this standard.

What standard of care is expected?

It is not negligent for a doctor to provide care which isn’t best medical practice. 

The standard expected is defined as that which a reasonable body of medical practitioners would deem appropriate. In other words, we are looking at the lowest acceptable practice. 

Let’s take an example. A patient is prescribed medication for their symptoms by their GP. They suffer complications as a direct consequence. It would not be a breach of duty if other GPs, acting reasonably, would have prescribed the same medication, provided that the prescription was logical. 

On the other hand, there would be a breach of the duty of care if no body of GPs acting reasonably would have prescribed the medication. This is a high bar to prove.

What can constitute a breach of duty?

Examples of breaches in a medical setting may include:

• Misdiagnosis or failure to diagnose a condition in time
• Delayed or inappropriate treatment that causes harm
• Surgical errors, such as operating on the wrong site
• Prescribing the wrong medication or an incorrect dosage
• Failure to refer a patient to a specialist when clinically necessary

*This is not an exhaustive list of breaches of duty.

How is breach of duty proven?

Some of the pieces of evidence we will collect in order to prove a breach of duty include: 

• Medical records and hospital notes 
• Test results and imaging 
• Prescriptions and referral letters
• Timeline of events and witness statements

However, the key to proving breach of duty in a clinical negligence claim is expert evidence.

Evidence is needed from a consultant in the relevant field of medical practice. For example, if the alleged negligence is by an oncologist, evidence would be needed from an expert in oncology as they are best placed to advise what constitutes reasonable care by the medical practitioner.

Without a supportive expert opinion, a claim is unlikely to succeed. All medical experts owe a duty to the Court to act independently. This means that their role is to provide an objective view on whether the care fell below the standard expected. This may not necessarily be in favour of the party who has instructed them.

An important caveat

Sub-standard care that doesn’t inflict an injury isn’t something that we can proceed with. This principle is known as ‘causation’.

The breach of duty has to have a causative effect. Take the below scenario:

Breach of Duty:  Your pharmacy has given you the wrong tablets.

Causation:  You took the tablets and have suffered side effects of this medication.

No Causation:  You took the tablets, but had no side effects from the medication.

The treatment you received from the healthcare provider must have either caused your injury or materially contributed to it. This is in contrast with symptoms which, but for the negligence, would still have occurred due to an underlying medical condition.

Duty of care case studies

With years of experience, we have handled thousands of medical negligence cases. Below is just a sample of the cases where we have successfully secured our clients compensation: 

Duty of care case 1

Our team secured £625,000 in compensation for Mr Hudson after a negligent delay in diagnosing aggressive salivary gland cancer. Despite clear signs of a serious issue, a vital pathology report was not reviewed for two months. This was a breach of duty of care which drastically reduced the the client’s survival chances. The cancer progressed, leading to life-changing surgery, facial disfigurement and permanent tube-feeding. Solicitor Emily Whiteley led the claim, resulting in a full admission of liability and a settlement which now helps Mr Hudson rebuild his life. 

Duty of care case 2

Our medical negligence team secured £20,000 for a client after an NHS Trust breached its duty of care by failing to act on her high risk of ectopic pregnancy. Despite her medical history, delays in diagnosis and treatment led to a life-threatening rupture, emergency surgery and lasting emotional trauma.

If you’ve been affected by a breached duty of care, contact our expert team for trusted legal support.