Why big court awards for damages are such a rare and hard-won prize

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The Independent Online
THE CASUAL observer might think that proving a doctor has been negligent would not be too difficult a prospect and financially a very rewarding one. In fact, winning a damages award is not easy and rightly so.

To win you have to prove everything you say in court. This means convincing a judge that all the facts before (usually) him are correct and that he should prefer to believe what he is told by the expert witnesses you call. If a case involves a complicated medical history and the expert evidence is contentious, this can be an uphill task. In other cases, a single consultation or procedure may be closely scrutinised.

"Negligence" hides a number of elements, all of which have to be proved. The lawyer will be concerned with the "standard of care" to which a patient is entitled, whether that standard was breached, and the question of "causation", which is often the hardest.

First the evidence must be gathered, from medical notes that can stretch back years, and may be incomplete. Then a doctor is called to criticise the care, and try to show that the treating doctor did not provide a legally acceptable standard of care. The standard required is actually quite low, and so this is often a ground upon whichclaims are defended.

Next, a doctor will be found to comment on causation. It is not enough to establish a doctor has been at fault - the error must, "on a balance of probablities", have caused the complaint. So, some claims will fail because an error was made but the damage did not come to pass. The court will consider what might have happened inalternative circumstances.

Large awards are rare but well reported - in fact, our system is very conservative in terms of damages. The really big awards are made only in the most severe cases, where the claimant will need care for the future or where the injury has caused a partial or total loss of earnings.

Damages awards are increasing, but only because the return on investments has declined and so a larger lump sum is needed to cover future care. The increase does not indicate that members of the public have become more litigious or their lawyers, as some would say, more greedy.

Henry Dyson is a medical negligence expert and partner at Leigh Day and Co solicitors

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