What is a clinical negligence claim and what must be proved?

When a patient (Claimant) is suing for clinical negligence, they are alleging that they have suffered an injury due to the substandard care of one or several practitioners (Defendants). There are four limbs to the clinical negligence test.

Duty of care

The defendant must owe a duty of care to the patient. As an optometrist, you automatically owe a duty of care to your patients to exercise reasonable care when you are examining them, so this test is almost always made out.

Breach of duty

For this test to be met, it must be proved that the defendant did, or failed to do, something that no other reasonably competent optometrist would have done in the same circumstances. Some examples of a breach of duty include but are not limited to:

• Failing to conduct an adequate examination, for example not conducting visual fields tests when they were clinically indicated
• Failing to detect a condition, for example failing to detect a retinal tear visible on ophthalmoscopy or fundus/OCT images
• Failing to refer appropriately, for example using the wrong referral urgency
• Failing to obtain informed consent

Causation

It must be proved that, as a result of the breach of duty, the claimant suffered an injury. An example of this is, if the breach of duty were failing to detect and refer for suspected glaucoma, the claimant suffering loss of vision due to glaucomatous damage that they otherwise would not have suffered with earlier intervention/treatment.

Remoteness of damage

The loss or injury must also be of a “foreseeable” type – if the consequences of the breach of duty could not be reasonably anticipated, the resulting damage is considered “too remote”. No damages (compensation) will be awarded for any loss or injury that is not a reasonably foreseeable consequence of the breach of duty.