Medical Negligence

The one we hate hearing about!

There is a really useful reference site for medical negligence on the University of Southhampton Trust’s website, written by a solicitor with an interest in medicolegal issues.

Types which may come up in the viva:

Clinical negligence claim

  • Demand for financial compensation for alleged harm caused by substandard clinical care
      • failure or delay in diagnosis
      • incorrect treatment
      • Many claims arise from poor communicationCommon reasons

To bring a successful complaint, the patient or other person must prove on the balance of probabilities both of the tests below:

  • that there was a breach of duty – such that no reasonable practitioner would have delivered that care
  • that the breach of duty or negligence caused or contributed to the injury, loss or damaged suffered, and that the patient would not have suffered the injury without the breach

Often there is an attempt to resolve claims before going to formal court: ‘clinical negligence pre action protocol’

  • resolves matters swiftly and efficiently, avoiding the time, stress, and costs associated with formal court proceedings


  • request for patient notes must be acknowledged within 14 days, notes supplied within 40
  • if the patient wishes to bring a claim, a letter of claim should be sent out, for which a doctor has 4 months to respond


Minimising the risk:

  • Legible and detailed notes
  • Keep in mind what your colleagues would do
  • If unsure do not plough on regardless
  • If you seek a colleagues advice, ensure this is documented in the records

Gross Negligence Manslaughter

Manslaughter is an offence of unlawful killing or homicide.  It is distinguished from murder by the absence of malice aforethought

Charge is usually of gross negligence manslaughter.

3 thresholds

  • in public interest
  • the jury will have to satisfy beyond reasonable doubt that each element of the crime has been proven
  • the defendant must have breached their duty of care by virtue of their negligence
    • that negligence must have caused death
    • the negligence complained of must amount to gross negligence

Then during sentencing there are a number of mitigating factors which may indicate lower culpability which will affect the sentence e.g. good character, exemplary conduct during the investigation and trial.

If probity is questioned, a custodial sentence is likely.