Brain Injuries and Medical Negligence – why it can be so hard to prove
In order to bring a successful medical negligence claim, not only do I have to prove that my client received negligent treatment, I also have to show that the negligent treatment they received caused them to suffer an injury. Lawyers call this “proving causation”.
To prove causation, we need to get a medical expert to give their view on what would have happened if the negligent mistake had not occurred.
This can be really simple – for example if the negligent error was marking the wrong arm for amputation then “proving causation” would mean showing what would have happened if the wrong arm had not been marked. Most people would agree that, if the wrong arm had not been marked, it is more than likely that:
- The right arm would have been marked; and
- The right arm would have been amputated
Unfortunately for most cases I have worked on causation is not this simple.
Difficulties with Proving Causation
Firstly – no one knows what would have happened if a single event had not occurred. We cannot go back in time, stop the negligence and then watch as events unfold anew. If we could then there would be no need for negligence claims – we could make sure that the right arm got marked the second time round.
Secondly – medicine is complicated. Doctors typically have more complex duties than marking the right arm ahead of an amputation. They are expected to appraise our bodies, test our bodily fluids, listen to what we say hurts, scan our insides and then decide what they think is going on and what to do about it. This makes proving negligence hard and proving causation harder.
How can you conclusively say what would have happened;
- if a medicine had been started two days earlier?
- if a scan that should have been taken would have shown the cancer?
- if treatment would have prevented a heart attack if a doctor had ordered blood tests on time?
The short answer is that you can’t.
The longer answer is that you have to base your case on what an expert considers would have been most likely to happen… Sometimes you have to ask several experts.
Take the example of blood tests touched on above. Let’s say that I would be alleging that blood tests should have been taken in an A&E department at 6pm. I would need one expert to say that it was negligent not to carry out a blood test at 6pm, another to say what the blood test would have shown and perhaps another to say what action would have been taken and perhaps another to say whether it would have prevented the heart attack.
Each expert is open to scrutiny. The hospital could admit that they were negligent in not organising blood tests but disagree with the case on causation. They could argue that the results would not have been back in time for effective treatment to be given, or would have come back but would not have shown potassium levels that were high enough to mandate treatment, or that they would have come back and mandated treatment but that the treatment would not be effective.
It is my responsibility as the Claimant’s lawyer to prove the case. I have to build each block in the bridge between the error and the resulting injury.
Added Difficulties with Causation in Brain Injury Cases
When the brain is involved then everything gets more complicated. The brain is our most complex organ, which also makes it the least understood. This means that when it comes to causation, there is more scope for debate about what would have happened if negligence had not occurred.
In addition to this, quite often the brain injuries I have come across are caused by a chain of events that start in a different part of the body. Complex bowel surgery, childbirth or treatment for DVT, for example. The longer the chain of events between the negligence and the injury, the more experts you need to prove causation. Each block of evidence open to arguments by the Defendant, nothing certain.
Because brain injuries have a catastrophic impact on people’s lives, they are worth a lot of money and are fiercely defended. It is therefore so important to instruct solicitors with the right experience and capabilities.
At Bolt Burdon Kemp, we are so specialised in providing legal advice that we have a separate department who specialise solely in claims involving brain-injured adults. This means that we have the hard-earned expertise to prove cases where other firms might fail.
This does not mean that we can guarantee that everyone will win, but it does mean that we have built our knowledge so that where there is a claim to prove, we will prove it.