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Andrew Mayall

Partner - Medical Negligence

Newcastle

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NHS Negligence Claims

Can I claim against the NHS for negligence?

If you have been harmed as a result of substandard medical treatment provided by the NHS, which has directly caused an injury or has led to an existing condition becoming worse, you could be eligible to make a claim.

The care provided by the NHS is generally of the highest standard, however when mistakes happen this can leave patients facing life changing injuries or illnesses. The impact of these mistakes can lead to loss of earnings, future care and medication costs, drastic changes to lifestyle and in some cases home and vehicle modifications.

It is therefore important to note that if you have suffered a poor outcome due to negligent treatment you can seek to obtain compensation.  True Solicitors medical negligence team answer your frequently asked questions about bringing a medical negligence claim against the NHS below.

What are examples of NHS negligence?

Negligent NHS treatment can include:

  • Failure to diagnose your illness or injury.
  • Administering the wrong medication or dosage.
  • Making an avoidable mistake during an operation or procedure.
  • Failure to obtain your informed consent to treatment.
  • Failure to warn you of any associated risks of a certain treatment.

It is important to note that a poor outcome from medical treatment does not always mean that the treatment you received was negligent. It is only possible to claim compensation if it can be proven that:

  • The treatment you received was below medically acceptable standards, and that this treatment caused you to suffer a loss or injury.

It is possible to make a claim against any medical treatment provider, including NHS hospitals, GPs and dental practices.

What does compensation cover?

Clinical negligence compensation is intended to cover your injuries and any associated financial losses, which were caused as a direct result of the negligent treatment you received. It can include:

  • Compensation for physical and psychological damage.
  • Payment to cover the cost of ongoing and future medical treatment.
  • The cost of adapting your home and/or vehicle.
  • The cost ongoing and future care.
  • Loss of earnings.

How long does the average NHS clinical negligence claim take?

The length of time varies considerably. The vast majority of NHS claims are settled by negotiation, out of court.

Straightforward NHS negligence claims may settle within a year to 18 months, whereas complex cases can take several years.

Will my claim end up in court?

Less than 2% of claims handled by the NHS Resolution end up in court. The vast majority of claims are settled out of court. If, however, your case does need to go to trial you can rest assured that your solicitor will support you throughout the entire process.

Will making a claim effect my ongoing treatment?

Making a clinical negligence claim should not impact upon your ongoing treatment. You should be able to continue receiving your treatment at the same hospital. However, if you or your treating clinicians feel that there has been a breakdown of trust due to the circumstances of your claim, or if you simply feel more comfortable to do so, arrangements can be made to transfer your treatment to a different hospital. The NHS has a duty to continue to provide you with treatment and will not refuse to treat you on the basis of you making a claim, albeit on some occasions your treatment provider may change.

Is compensation paid from the NHS budget?

The organisation that insures the NHS is NHS Resolution. It was set up by the government to deal with claims against NHS Trusts. It acts in a similar way to an insurance company, and each year every NHS Trust pays a premium to NHS Resolution to cover them in the eventuality of a claim being lodged against them.

Compensation paid to the victims of medical negligence therefore is funded from the premiums paid by each Trust to NHS Resolution.

Is there a time limit for suing the NHS?

You must make a claim within three years of the date of the treatment you received from the NHS, or three years from when you became aware that your illness or injury was caused by the treatment you received. The exceptions to this rule are when cases involve children or those who are mentally incapacitated to make a claim themselves.

As a child is unable to bring a claim on their own behalf, the three year time limit does not start until they become an adult on their 18th birthday. They can have a claim brought on their behalf by a Litigation Friend prior to their 18th birthday, but the limitation period will still run from the age of 18 and will therefore not expire until the child’s 21st birthday. There is no time limit in respect of making a claim for those who lack the capacity to make a claim themselves.

If a loved one has died due to clinical negligence, the three-year time limit runs from the date of death.

How much will it cost to make an NHS negligence claim?

Most NHS negligence claims are handled on a ‘No win, no fee’ basis. This simply means that should we not win your case, you will not need to pay us anything to cover your legal fees.

If your case is won your opponent will pay most of your legal costs.

Any legal costs not paid by your opponent will be deducted from the compensation that you receive. These costs include:

  • The cost of your no win no fee insurance policy.
  • Some of your basic legal costs which can’t be recovered from your opponent.
  • A “success fee” which compensates us for the risk that if your claim was unsuccessful then we would not be paid at all.

Your solicitor will discuss this with you in advance, so you’ll know what to expect when your claim settles.

Making a complaint to PALS

Before deciding whether to instruct a solicitor with regard to investigating a potential medical negligence claim, you are able to make a complaint to the hospital Trust through  the Patient Advice and Liaison Service, PALS. Each NHS Trust has its own PALS service to ensure that the concerns of patients, their relatives and carers are listened to, in order to resolve issues as soon as possible.

If you are unsatisfied with the PALS response you can instruct a solicitor to look at your potential claim and they can use the complaint you made through PALS to help investigate your case and in some cases as evidence to support your case.

When making a complaint you can either make the complaint to the NHS service provider i.e. the GP, dentist surgery or hospital that treated you; or to the commissioner of the services – the body that pays for the NHS services you use. You cannot make a complaint to both.

If you need to make a complaint that involves the treatment from more than one organisation, for example issues involving your GP and your local hospital, it is only necessary to make one complaint. The organisation that you send the complaint to must cooperate with the others to provide you with a coordinated response.

Is it ethical to sue the NHS?

Many people feel uneasy about making a claim against the NHS. The NHS is a much loved British institution, and for the majority of us, provides exemplary care from the minute we are born until we die. However, treatment errors do sometimes occur and if this happens, and leads to your health and wellbeing being compromised, you are legally entitled to pursue a claim against the NHS for medical negligence.

It is also important to note that making a medical negligence claim isn’t designed to benefit you financially, but to put you back in the same financial position you were in before your life was impacted by the negligent treatment.

Will my claim make a difference?

If you successfully bring a claim against the NHS this can help to highlight substandard areas of healthcare, which may help to ensure that working practices are improved and that the same mistake doesn’t happen to another patient.

Can I sue the NHS for death?

If a loved one or family member has passed away due to negligent medical treatment they received from the NHS, it is possible to make a claim on behalf of their Estate. Claims made on the behalf of the deceased’s Estate need to be pursued by their Personal Representative.  Any compensation arising from the claim would be awarded to the deceased’s beneficiaries. Please contact us to discuss this further if you believe that a loved one has died due to negligent medical treatment.

How to sue the NHS

Suing the NHS can be a long and complicated process without the right legal representation. If you have been effected by clinical negligence, within the last three years, contact us today. A member of our friendly first response team will ask you a few questions to help us to establish the circumstances of your case and to assess the treatment you received. This will then be reviewed by one of our medical negligence solicitors. If we believe that there are good prospects of being able to show that your treatment was negligent we will agree to handle your case on a no win, no fee basis, and advise you on the next steps.

Call us on 0344 754 7000

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Andrew Mayall

Partner - Medical Negligence

Newcastle

Contact

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Please Note: Estimate amounts are guidelines only. Your injury and recovery are as individual as you are. The amounts are guideline amounts only and any settlement will be based upon the evidence of medical practitioners.
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