The default test is "but for" causation on the balance of probabilities. Where injury has more than one cause and "but for" cannot be cleanly satisfied, material contribution can apply - see Bailey v MoD [2008] EWCA Civ 883 and Holmes v Poeton [2023] EWCA Civ 1377 (which confirmed it applies to indivisible as well as divisible injuries). Loss of chance below 50% is generally not recoverable (Gregg v Scott [2005] UKHL 2).
What are the Bolam and Bolitho tests in clinical negligence?
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 holds that a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion. Bolitho v City and Hackney HA [1998] AC 232 added that the responsible body of opinion must itself be reasonable, logical and withstand logical analysis - the court can reject an opinion that does not stand up to scrutiny.
How does Montgomery change the law on consent?
Montgomery v Lanarkshire Health Board [2015] UKSC 11 holds that a doctor must take reasonable care to ensure the patient is aware of material risks and of reasonable alternatives. Materiality is judged from the perspective of the particular patient, not a responsible body of doctors. Bolam does not protect a clinician who failed to disclose a material risk.
How does the Pre-Action Protocol for the Resolution of Clinical Disputes work?
Obtain medical records first via subject access request (UK GDPR / DPA 2018, response within one month). Send a Letter of Notification (optional) and then a Letter of Claim setting out facts, allegations of negligence, the causal link and main heads of loss. The defendant should send a reasoned Letter of Response within four months. Independent experts are usually needed on breach, causation and condition/prognosis. ADR is encouraged.
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