Suing the NHS: Medical negligence compensation
Medical negligence compensation claims are where patients seek compensation from the NHS or sue an NHS hospital because sub-standard negligent medical treatment has caused them injury or harm. To learn more about the service SheridanLaw provides please take a look at our medical negligence compensation page.
Claims can be against medical professionals such as a hospital doctor, GP, nurse, physiotherapist, dentist, pharmacist or ambulance driver, and against medical institutions such as an NHS hospital, private hospital or a GP surgery.
Medical negligence compensation claims (also known as clinical negligence or medical malpractice) is a complex area of law. It is therefore important that you obtain advice from a solicitor who is a recognised expert in the field before you sue the NHS or bring a claim against a doctor.
There are three main elements that have to be established and proved in order for a medical negligence compensation claim to be successful. This is the same whether you are suing the NHS or a private doctor:
Negligence – the first element of a clinical / medical negligence compensation claim
The first element for your solicitor to prove if you are suing the NHS or a private doctor is that the medical professional or medical institution was negligent. Negligence is where the standard of medical care provided by the NHS or private hospital fell below the level expected of a professional in the field. For example, patients may be able to sue NHS hospitals because of failure to diagnose a medical condition, mistakes made in treatment such as surgery and use of improper or out of date treatment or medication.
Medical professionals will not be negligent just because there was a better alternative for the care. To be negligent so that you (through your solicitor) can sue the NHS, the level of care needs to have fallen below the level expected of the average competent medical professional in the field. The question to ask when bringing a claim against a doctor or hospital is whether a reasonably competent doctor in the same specialty faced with the same situation could reasonably have acted in the same way. If this hypothetical doctor would have, then negligence cannot be established even if many or even most doctors would have acted differently.
In order to establish negligence and sue the NHS, your solicitor will need to obtain expert evidence from a medical expert in the relevant medical field. So, if your claim is against a GP then normally your solicitor will obtain expert evidence from another GP. An experienced solicitor will know suitable and highly respected medical practitioners in numerous areas of specialty who are able to serve as a medical expert. The medical expert will review your medical records and in most cases needs to give you a medical examination before preparing his or her report.
Causation – the second element of a clinical / medical negligence compensation claim to sue NHS hospitals or private medical establishments
The second element to prove is that there is a causal link between the negligence and the harm, ie that the injury, damage and loss suffered is a direct consequence of the medical negligence.
Even when medical practitioners and hospitals admit that there was negligence, they frequently argue that the causation element of a clinical negligence / medical malpractice compensation claim has not been met, for example, contending that the patient’s injury is because of the underlying medical condition rather than the negligence.
Causation is a difficult element of a clinical negligence / medical malpractice claim for a solicitor to prove when suing the NHS or GPs. Your solicitor will need to obtain the opinion of a medical expert if you are to successfully sue the NHS or a doctor. Often the expert who is assessing negligence will also consider whether there was causation.
Damages - the third element of a medical negligence claim against the NHS
The third element that must be established to sue NHS hospitals and doctors in a clinical negligence / medical negligence case is damages, ie the amount of compensation the patient should receive. The amount of damages will depend on a variety of factors, the most important of which are the patient’s pain and suffering and the financial loss the patient has incurred and will incur.
Financial loss can include the future costs of caring for the patient. It can also include the patient’s future lost income where, as a result of the negligence, the patient is no longer able to work or to earn as much as he or she would otherwise. Where a patient will need significant care support and will no longer be able to work, the amount of damages awarded when you bring a claim against the NHS or a hospital can be extremely high.
Before damages can be fully assessed in a claim suing the NHS it is normally necessary for a medical expert to prepare a report on damages. In serious cases, several experts are often needed to ascertain what level of care and provision will be needed.
When to bring a clinical / medical negligence compensation claim against a doctor or hospital
There are limitation periods within which to sue NHS hospitals or bring a medical negligence claim for compensation against a doctor or other medical professional. The general rule is that you must bring a claim against the NHS or hospital within three years of the negligence. Alternatively, time runs from the date when you knew (or should have known) that the injury from which you suffered might give rise to a legal claim for compensation. By its very nature, the second alternative is always open to question by defendants. It is therefore always safest to bring a claim within three years of the negligence occurring where this is possible.
There are special rules that apply when a patient has died, for children, and when a patient does not have full mental capacity, which your solicitor will be able to discuss with you. If you feel that you may have a clinical negligence / medical malpractice claim it is always advisable to see a solicitor as soon as possible so that they can advise on the limitation period and take steps to protect your rights to make a clinical negligence compensation claim.
Funding a clinical / medical negligence claim
There are various options for funding a clinical / medical negligence claim. These apply both where you sue NHS hospitals and where you sue private doctors and medical professionals. These are:
- Public funding (legal aid)
- A conditional fee arrangement (also known as no-win no-fee)
- Legal expense insurance
- Private payment
Even if you are not eligible for legal aid, you should only use a solicitor who is a member of the Law Society Clinical Negligence Panel and whose firm is accredited by the Legal Services Commission to undertake legally aided clinical negligence work. Only law firms with significant expertise and experience are able to offer legal aid, so this is a good way to verify the credentials of your medical negligence solicitor.
The NHS complaints procedure - an alternative (and supplement) to medical negligence claims against the NHS
The NHS has a complaints procedure which is distinct from making a clinical negligence / medical malpractice claim for compensation where you sue the NHS or sue NHS hospitals or trusts. Under the NHS complaints procedure a patient can make a complaint about NHS staff (such as a hospital doctor, GP, nurse or ambulance driver) when unhappy with the treatment or service received.
The purpose of the complaints procedure is for the NHS to identify and rectify problems – it is not a means by which patients can obtain compensation for negligent treatment by suing the NHS through the courts. A complaint under the NHS complaints procedure should be raised within twelve months of the treatment.
There are two steps to complaining. The first is to makes a complaint to the NHS hospital trust or Primary Care Practice where the treatment was received, under their own complaints procedure (which they will provide on request). If you are unsatisfied with the response you receive, you can then move to the second stage, which is to refer the matter to the Parliamentary and Health Service Ombudsman.
Once a patient begins a clinical negligence / medical malpractice claim for compensation it is no longer possible to pursue a complaint under the NHS complaints procedure. Using the NHS complaints procedure does not stop you from later pursuing a clinical negligence / medical malpractice compensation claim and in some instances it is advisable to make a complaint under the NHS procedure before commencing a clinical negligence / medical malpractice claim.
Patients can obtain assistance in making a complaint to the NHS from the Patient Advice and Liaison Service (PALS) which is available in NHS hospitals and from the Independent Complaints Advocacy Service, a national service that provides support to people making complaints about the care or treatment they received at the NHS.
Medical negligence claims are a complex area of law and it is vital that you obtain advice from an experienced solicitor as soon as possible if you believe you may have a possible claim. Please take a look at our main medical negligence claims page to learn more about our expertise in the area.
If you feel you may have a clinical negligence / medical malpractice claim because of negligent medical treatment please telephone us on 020 8541 1181 or email us at firstname.lastname@example.org
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