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In this ' Anatomy of a medical negligence claim’ series of articles, Melanie will break down the legal jargon.

In Part Two, she examines proving breach of duty of care.

Part 1 explained a “Duty of Care”. What it is. And how the person bringing the claim (the Claimant) has to prove that there had been a Breach of Duty of Care.

That’s all great but how exactly do you prove the breach?

You have told your Lawyer all about the complaint you have and what you think has happened as a result of that.  Breach of Duty of Care has been explained to you but what next?

Next is obtaining copies of your medical records.

Records come from all of the places that you have received medical treatment. This includes those that are not being complained about.

Why not just medical records in direct relation to the medical negligence claim?

We can read through all of those records and see whether there is anything in them that supports your allegations or alerts them to a problem.

This is a hugely important part of your claim. 

We read through your medical records when they are received to have a “head start” on your case.  We then have a thorough understanding of you and what has happened.

Some firms will give this job to a trainee or, worse still, outsource it.  But how do they really know their client? How do they know the best way to win their case?

When those notes have been read and analysed you will receive a summary.

If your case still has prospects of success the next stage is to identify and instruct an independent medical expert. Their job is to review the medical records and give us his or her opinion on whether there has been a breach of duty of care.

How do we choose the medical expert?

The answer to that depends on the sort of case you have.

We will instruct and expert in area of medicine we think has been negligent.

For example, if you have suffered a delay in your GP referring you for treatment then we would instruct an expert in GP / Primary care.

If an Orthopaedic Surgeon failed to carry out an operation properly then we would instruct an Orthopaedic Surgeon.

All of the experts that we instruct are carefully chosen for their level of expertise and experience in “medico-legal” work. 

They are always independent and therefore not connected in any way to the people who you are making a claim against. 

We instruct the expert asking him or her to review your notes and the instructions that you have given us.

A report will follow detailing whether or not, in their opinion, there has been a Breach of Duty of care.

At that stage you would be provided with a full written advice about the next steps in your case.”


Melanie Lidstone-Land and the Medical Negligence team at Swain & Co Solicitors regularly win compensation for their clients.

Clients who have experienced substandard treatment or a failure to provide treatment.

If you, a family member or a friend have experienced problems regarding substandard medical treatment contact our team today on 023 92 483322. 

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