National Health Service
The National Health Service staff do a wonderful job and on most occasions provide us with advice, treatment and care that meets our reasonable expectations. However, from time to time there are adverse consequences and whilst some outcomes cannot be avoided (because there are risks to any clinical procedure) some results are avoidable.
Depending on how serious the effects are when there has been a lack of care or poor treatment, you may want an explanation and an apology. In many instances this can be sufficient. However, there are some instances where even a thorough investigation and subsequent apology, are not sufficient to satisfy the person injured, or made worse, by a particular treatment. In those cases the individual may want compensation, to reflect the harm suffered, as well as losses (perhaps lost earnings) and expenses (possibly private medical treatment) to remedy the situation.
If you would like further information about making a compensation claim for injuries sustained as a result of medical negligence, contact one of our specialist lawyers, by telephoning 0333 123 9099, emailing us, or completing the enquiry form.
Complaints made to the NHS should be made within 12 months of the event in question.
If a claim for compensation is to be made, then legal action must be commenced within three years of the event leading to the injury, in the case of an adult. In the case of children, the clock, for bringing a claim, does not begin to run until they reached their 18th birthday, when they, like an adult, have three years to bring a claim. However, it is important to bring a claim as soon as possible, to avoid the risk of valuable evidence being lost, such as medical records, or witnesses no longer recalling events. In some cases witnesses may no longer be traceable, if they have moved.
Who can claim for medical negligence?
In general, you can bring a claim for medical negligence if:
- You have been injured as a result of medical negligence
- You are the next-of-kin of someone who has died
- You are on the next-of-kin of someone who is unable to take action themselves, probably because of a very serious injury resulting in brain damage
There may be other circumstances where you are able to bring a claim, such as if you have a lasting power of attorney for the person injured by medical negligence. It is therefore important to consult an experienced medical negligence solicitor at the earliest opportunity to find out whether you may be able to start a claim.
Making a complaint
Complaints made to the NHS should be made within 12 months of the event in question. Complaints made to private healthcare providers should be provided as soon as possible. Whoever the complaint is being made against it is sensible to draft your complaint in chronological order, setting out the key dates and times of those matters that you consider relevant in respect of your complaint. If possible, not only should you include the date and time of key events, but also the names of individuals who were witness to events or were participants in relevant conversations. It is quite natural to forget some issues and therefore it is important that draft notes are prepared immediately following the event. Those contemporaneous notes should be kept, even after a letter of complaint has been sent, should there be a dispute about the facts. If others, known to you, were witnesses to the events, then they should prepare their own note.
If you want help with making a complaint, the NHS Choices website has some useful information. Most hospitals have a Patient Advice and Liaison Service (PALS) where you can speak to someone for confidential advice and support. They will also be able to provide you with an address to send your complaint to.
It is always useful to keep hold of copies of any documents and letters you may send in relation to your complaint, just in case they go astray during the investigation process. It is also important to hold onto original documents, as you may want to refer to them later, during the complaint process, if you’re not satisfied with the response you receive from the investigating body.
Once the complaint has been submitted the NHS should acknowledge that complaint within three days. The investigation process will depend upon the nature of the complaint, how recently the events (leading to the complaint took place), whether it involves a number of departments or teams, and the number of potential witnesses. The more complicated the issue is, the longer the investigation is likely to take, particularly if key witnesses from the hospital no longer work at that particular location.
Making a formal, written, complaint should not be the first step. In the first instance try to speak to those responsible for your treatment, as it may well be that the complaint can be resolved swiftly and with the least distress for all involved. However, if speaking to others does not provide a satisfactory outcome, or you would prefer to make a written complaint, to ensure there is a full understanding of events and your concerns, then this should be put in writing, as set out above.
Following the investigation the complainant is likely to receive a detailed response, answering all the points of concern. The response may also contain an apology. That may be sufficient to satisfy the complainant but if it is not, the patient may still make a claim for compensation. In those circumstances it is sensible to instruct a specialist solicitor to advise you on your prospects of making a successful claim for compensation.
If a complaint has been made and investigation completed, your solicitor will want to see copies of your letter and the response, as well as any other documents you hold in respect of those matters relating to events leading to the injury.
What is Medical Negligence?
In the vast majority of cases patients receive a good standard of care and treatment, and thus emerge in better health than when they first sought treatment. However, there are many occasions when the results are not as hoped-for and the individual’s health deteriorates. The fact that an individual’s health does not improve following care or treatment, does not mean that you can automatically make a claim for compensation.
Claims for compensation can only be made where there has been negligent treatment or care, or treatment below a reasonable standard. This standard is measured by independent experts acting in the same capacity as the treating professional, who is alleged to have provided substandard care or treatment.
The test is the standard of the ordinary skilled man or woman exercising and holding themselves out to have that special skill. Therefore, the health professional or medical practitioner does not have to have the highest expertise. It is sufficient that they exercised the ordinary skill of an ordinary competent person in that particular area of medicine. A health professional is not negligent if they have acted in accordance with a practice which is accepted as proper by a reasonable body of medical opinion. Therefore, the fact that a mistake has been made will not necessarily mean that the health professional has been negligent.
Even if the health professional is shown to have been negligent, to recover compensation for the harm arising from the negligence, the patient also has to show that they suffered harm as a direct result of that negligence. Consequently, if the outcome experienced by the patient is the same as they would have experienced even if there had not been any negligence on the part of the health professional, then no compensation is payable. To recover compensation the patient has to show that they have suffered harm over and above the symptoms they would have experienced if there had not been negligence.
Examples that may qualify as medical negligence include:
- Failure to examine a patient correctly
- Failure to correctly consider a patient’s medical history
- Failure to carry out appropriate diagnostic tests, e.g. blood tests or x-rays
- Failure to correctly interpret test results
- Misdiagnosis or late diagnosis of a condition
- Failure to provide the correct treatment
- Failure to record or respond to a patient’s deteriorating condition
- Surgical errors
- Providing inadequate inappropriate surgical after-care
- Neglecting a patient while they were in hospital care
- Administrative errors that impact upon a patient’s care, such as losing test results
- Excessive dose of medication
What kind of Medical Negligence Can I Claim For?
There are no limits to the types of claims that can be brought for medical negligence. Examples of where such claims can be made are as follows:
- Delayed Treatment
- Reproductive organs
If you have suffered injury as a result of substandard care you may be entitled to compensation, for the pain and suffering experienced in respect of the injury, as well as financial losses and expenses arising from the injury. Where a recovery is made in a relatively short period of time compensation is likely to be limited to the suffering and, perhaps, a claim for some lost earnings and family support.
However, where the injuries are serious and long-lasting, very substantial sums of compensation can be recovered, to reflect the full extent of suffering, as well as the needs of the individual, in order to maximise the recovery and meet their reasonable needs to enjoy life. In some cases this can mean purchase of a new home, expensive equipment (to maximise rehabilitation) and round-the-clock care, to ensure all needs are met.
Claims process for medical negligence claims
There are a number of stages to making a successful medical negligence claim. It is essential to manage each stage correctly in order to achieve the best outcome.
Although you can make a claim by yourself the vast majority of people use a specialist medical negligence solicitor. This system will have the expertise and experience to put together the best possible case and to optimise your prospects of recovering medical negligence compensation.
Although the precise steps may vary from case to case the likely process of making the claim will be as follows:
- Contact the relevant hospital or other health care provider, to put them on notice of a claim.
- Obtain all the relevant medical records
- Obtain expert evidence from a medical practitioner to support the claim
- Make the claim to the hospital or healthcare provider
- Subject to them admitting responsibility, obtaining evidence to demonstrate the full impact of the medical negligence
- Enter negotiations and reach a settlement with the healthcare organisation
- In the absence of reaching an agreement, start legal proceedings
I cannot afford legal fees. Can I still bring a claim?
Legal aid is available for children, in limited circumstances, and therefore the vast majority of claims are brought under what is known as a "no-win, no fee" agreement. This means the medical negligence solicitor takes the risk, as the solicitor will only get paid if they succeed on your behalf.
If they do not win, for you, they do not get paid. The medical negligence solicitor can also ensure that you do not have to worry about paying the other side's legal fees if you lose. Therefore, you can bring a claim with peace of mind, knowing that if it is unsuccessful you will not have to pay any legal fees, either to your own solicitor, or to your opponent.
How long will my case take?
Each claim is different. Therefore, there is not a specific timescale to settling a claim for compensation. It is frequently the case that the more serious the injury the longer the claim will take. This is not because of the legal process, but because it is important to understand the full effects of the injury and often this can only be determined after treatment and rehabilitation, perhaps around two years following the negligence by the healthcare provider.
What information will the solicitor want?
The solicitor will want a full account of your treatment and what you say went wrong. If you have any letters from your healthcare provider that relate to your care, this solicitor will want to see these. Importantly, if you have already made a complaint, the medical negligence solicitor will want to see your letter of complaint to the healthcare provider and the response to the complaint. If you have any documents about treatment they too will be useful.
My treatment was not provided by the NHS. Can I still bring a claim for medical negligence?
Yes. A medical negligence claim can be brought against any health professional, or the organisation they work for, irrespective of whether your treatment was provided by the NHS or by a private healthcare provider.
IBB Claims are the right choice for medical negligence claims
To start a medical negligence claim or to find out more about how you make a claim, please contact us today by calling 0333 123 9099.
Our team of experts in various aspects of personal injury compensation, including medical negligence. We have years of experience and are proud to help a wide variety of people in the community to make successful medical negligence claims, but have made a real difference to their lives.
We treat each client as an individual, taking the time to understand your unique situation and requirements, so we can offer tailored advice and guidance to help you get the best possible result. We will speak to you in plain English. We do not use jargon and avoid antiquated phrases. You are in control of the claims process and we help you make the important decisions.
When you come to us about making a medical negligence claim, we will provide a free initial consultation to assess the strength of your claim. We were then give you a realistic idea as to how likely you are to make a successful claim and what compensation you may be entitled to.
Legal aid for medical negligence claims was taken away by the government many years ago and is now only available in very limited circumstances. However, we offer our clients a “no-win, no fee” agreement. This means you do not have to worry about paying our legal costs if you lose. Members of our team are members of the Association of Personal Injury Lawyers (“APIL”). Malcolm Underhill, Partner, is a fellow of the Association of Personal Injury Lawyers and is an assessor for the Law Society Catastrophic injury scheme. These achievements reflect our strong expertise across all areas of personal injury law and our commitment to maintaining the highest possible standards for our clients.
If you would like further information about making a compensation claim for injuries sustained as a result of medical negligence, contact one of our specialist lawyers, by telephoning on 0333 123 9099 , or emailing us at email@example.com, or completing the enquiry form.