Duty of Care in Clinical Negligence Claims

Duty of care is the legal and ethical duty that a healthcare professionals must follow. It means that they  must meet an acceptable standard of care to protect the safety and wellbeing of their patients. 

It is the legal obligation imposed on doctors which best reinforces the ethical principles of the Hippocratic Oath, which says that a doctor should “do no harm”.

Key Takeaways

• Duty of care is a legal obligation for healthcare professionals to protect the safety of their patients.
• There are four key pillars to clinical negligence claims, duty of care, breach of duty, causation, damages. 
• It only extends to the patient and not any parent or carer of a patient.

Duty of Care in Clinical Negligence Claims

There are four key pillars that determine the success of a clinical negligence claim: 

• Duty of Care – did the healthcare provider owe you a duty of care?
• Breach of Duty – did the healthcare provider breach this duty of care?
• Causation – did this breach directly cause you harm?
• Damages – what was the extent of the damages caused?

If you are worried that you might have a Clinical Negligence claim, then proving that a duty of care exists is key.  In short, you must be able to prove that the healthcare professional who was treating you, owed you a duty of care otherwise you won’t be able to make a claim.

If you are a patient, then it will usually be the case that the professional treating you will owe you a duty of care.  This includes doctor/patient relationships as well as dentist/patient, physiotherapist/patient, nurse/patient and many others.

Are There Circumstances When There Isn’t a Duty of Care?

A good example of where a duty of care may not be owed if you are attending hospital as the parent or carer of a patient.  In that case, the duty of owed to the person being treated, not to you. 

So, if you believe there have been any errors that have caused you harm, then there is a chance it is likely you will not be able to make a claim for negligence if you cannot prove that the professional responsible owed you a duty of care. 

There have previously been some highly publicised cases where people who have witnessed tragic or distressing events have been able to claim for the psychological injury this caused.  However, the law on this has changed recently and claims for secondary victims have all but gone.  This confirms the position that a duty of care is only owed to the patient, so those in proximity to events, but not the subject of them, cannot bring a claim. 

I have previously acted for a father who witnessed his wife lose their unborn baby in tragic and avoidable circumstances while she was being treated in hospital.  In that situation both mother and father had successful claims, even though a duty of care was not owed to the father.  If that claim were to be brought today now the law has changed, then it is likely that the father’s claim would fail, because the hospital did not owe him a duty of care.

How Can We Help?

If you think you might have suffered avoidable harm as a result of medical care you have received, then get in touch with our experts by calling 0330 123 1229, complete our contact form, or send us an email via info@smithpartnership.co.uk.

We also have expert medical negligence solicitors at our offices across the East Midlands and Staffordshire, in Burton, Derby, Leicester, Stoke and Swadlincote.