Those claiming clinical negligence have to prove three actions:

• Firstly, they were scheduled a duty of care by their healthcare provider,
• Secondly, there was a breach of that duty, and
• Thirdly, they suffered harm.

The institution of duty of care takes place as soon as any medical advice is provided. So the first action is easy for the claimant to prove. After this, the claimant has to demonstrate that the care that was provided was below an acceptable standard. This involves contemplating each and every aspect of clinical management to ascertain if it was reasonable and legitimate or not. The claimant then has to demonstrate that the harm suffered by the patient occurred as a result of medical care that was below par. Compensation is awarded for the pain and suffering and specific losses due to identified avoidable harm.

Several institutions have standard protocols and guidelines for dealing with certain specific conditions. If these guidelines are not followed, claimants can allege that failure to follow the protocol proves negligence on part of the doctors. Healthcare professionals who do not follow unit guidelines must have a valid justification for their actions that can be legitimized by the opinion of a recognized medical body.

A mere lack of care, or error in judgment, or an accident does not prove negligence on the part of the doctor. If a doctor follows a practice that the medical profession of that particular time agrees with, he cannot be held accountable for negligence only because a better alternative treatment was available. He can also not be held responsible on the grounds that another doctor would not have chosen the practice that the accused followed.