In order to successfully claim compensation in an Erbs palsy medical negligence claim it is necessary for a number of legal issues to be fulfilled. In general terms in order to prove negligence in any field of law it must first be shown that the potential defendant owes the potential claimant a duty of care. In the case of the relationship between a doctor and a patient the requisite duty of care exists without the necessity of going any further into matters. Inevitably a treating physician owes his patient a duty of care and must act accordingly.

Once the duty of care has been established it must secondly be shown that the duty of care has been breached. The law relating to professional negligence has developed over a number of years and there are now special rules relating to health care providers. In the case of an Erbs palsy medical negligence claim a health care provider must treat and care for a patient with a reasonable degree of skill and care. If the health care provider was careless, lacked proper skills or disregarded established rules there may be a finding of medical negligence.

The standard of care that a healthcare provider must tender is judged not on an absolute basis but is compared to the quality of care that is provided by others practicing in similar circumstances. This means that in an Erbs palsy medical negligence claim the standard of care provided by a doctor or midwife will be measured against that of their peers. This leads to the proposition outlined in the case "Bolam v Friern Hospital Management Committee 1957" whereby it was determined that if a significant body of fellow practitioners would have acted in the same way confronted with the same circumstances then a medical practitioner will not be found to be negligent. This means that if minority treatment that is supported by a reasonable number of other doctors fails it will not be negligent conduct notwithstanding that more mainstream treatment would likely have been more successful. This proposition provides a defense to some Erbs palsy medical negligence claims however it is tempered by the case of "Bolitho-v-City & Hackney Health Authority 1997" which states that if one of a number of alternative methods of treatment was used even though it was supported by a body of medical practitioners, a finding of negligence may still result if the method of treatment did not stand up to logical analysis.

The third and final piece of the jigsaw necessary to prove an Erbs palsy medical negligence claim is the requirement to show that the alleged negligent treatment actually caused the physical harm that has been complained about. This is usually self evident in these cases however it may be necessary to call expert evidence if this issue is disputed.

The last matter which needs consideration in regards to an Erbs palsy medical negligence claim relates to the issue of 'limitation'. It is a requirement of UK law that that the limitation periods are complied with which means that in general terms a claim must either be settled or legal proceedings must have been issued within three years of the negligent behaviour that caused the harm. Failure to comply with these rules may mean that the claim becomes statute barred and the opportunity to claim compensation may be lost forever. There are however some very significant exceptions to these general rules which are necessary for claims involving minors or the mentally disabled :-

    • The three year period does not start to run until the injury is actually discovered with reasonable diligence which may be some considerable time after the negligent act.
    • The three year period does not start to run until a potential claimant reaches the age of eighteen years and expires on the eve of that persons twenty first birthday.
    • The three year period does not run against a person who suffers from a lack of mental capacity but may start to run if lucidity returns which protects most mentally disabled people who can usually start proceedings at any time during their lives.
    • Judges have discretion to override the time limits in appropriate circumstances. This discretion is rarely exercised however if a claim is outside the normal limitation period consideration should be given to an application to a judge to extend the period.


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