Medical Negligence Claim in UK Law

If courts make findings of negligence on flimsy evidence or regard failure to produce an expected result as strong evidence of negligence, doctors are likely to protect themselves by what has become known as defensive medicine, that is to say, adopting procedures which are not for the benefit of the patient but safeguards against the possibility of the patient making a claim for negligence.

I personally think that in professional negligence cases, and in particular in medical negligence cases, there is a duty of candour resting upon the professional man. This is recognised by the legal professions in their ethical rules requiring their members to refer the client to other advisers, if it appears that the client has a valid claim for negligence. This also appears to be recognised by the Medical Defence Union, whose view is that

Likewise, if uncertainty as to the true position caused by the defendants' lank of frankness following the initial incident led to real anxiety and distress, that is an element for which they are entitled to compensation under general damages for suffering. But anger and indignation is not a proper subject for compensation; it is neither pain nor suffering.

To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages. I know of no precedent for awarding damages for indignation aroused by a defendant's conduct.

Everything has a determinate cause, even if we do not know what it is. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.

It may well be that in a normal case, a defendant to an action in Holland should continue to retain lawyers to act on his behalf in relation to proceedings which have been stayed. We feel sure that a stay lasting 12 years of a simple claim for medical negligence must be quite extraordinary. The consequence is, nonetheless, that he has manifestly not received the fair trial that Article 6 of the Human Rights Convention required.

By the phrase "amenable to be struck out" the pleader intended to convey that after 1990 there was no arguable defence to an application to strike out. What had been (let us assume) a right of action against the debtor which was worth something, had become a right of action which was worth nothing. All the alleged negligence by the solicitor had occurred by then. The present action was not started until more than 6 years later.