When Lord Woolf was investigating access to the civil justice system in the 1990s, he described the field of medical malpractice litigation as a jurisdiction where it was very difficult to sustain a claim, where more claims were successfully defended at trial than any other jurisdiction, and where the cost of litigating was extremely expensive. That remains the position and the reason is usually the issue of proving causation.
For many acute cases, there is a reason why a person is in hospital in the first place, and if something is done or not done by the ambulance team, the paramedic, the A&E staff or the surgeons, the question arises: has it altered the outcome beyond that which was inevitable? Even where there has been a breach of the surgeon’s duty of care (negligence), has it actually worsened the outcome? To put it another way, is there a causal link between the negligence and the injury? Causation remains key to the successful defence of many claims, even where negligence is clear and can be admitted.
Being negligent does not mean being liable. Being negligent and causing an injury means a liability arises. Causation is key…
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