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Why you shouldn’t feel guilty about suing the NHS for negligent treatment

26 July 2019

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Whilst it is only natural to think that making a medical negligence claim will add further stress and strain to a stretched NHS, highlighting examples of poor treatment and care can help the service learn and improve, raising the standards of medical care for everyone.

TRUE Solicitors LLP considers the position below:

What is medical negligence?

Firstly, it is important to establish what exactly is classed as medical negligence. Medical negligence, also frequently referred to as clinical negligence, is the term used to describe substandard medical treatment provided to a patient by a medical professional, which directly causes injury or leads to an existing condition becoming worse. Common examples of medical negligence include instances where a patient has suffered due to:

• Missed or delayed diagnosis
• Failure to interpret results/radiology correctly
• Surgical error
• Being provided with incorrect medication or treatment

I have received negligent NHS treatment, should I sue the NHS?

Generally speaking treatment and care administered by the NHS is exemplary, however mistakes can happen leaving 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.

If you have been left unable to work due to negligent treatment by the NHS, this could have a negative financial impact on your life, especially if you need to be able to afford to pay for additional care and medication. Therefore the financial compensation obtained through successfully making a claim against the NHS can help you to cover such additional costs.

The NHS is not technically a ‘free’ service, you and your family will pay into this through your hard earned taxes all of your working life. Through reporting instances of medical negligence and seeking accountability you can help improve standards within the NHS and prevent other patients from suffering from the same failings in treatment and care.

NHS Resolution, the department at the NHS which deals with negligence claims, recognises this themselves and states, “we work to compensate for negligent care and resolve concerns and disputes. A key component of our strategy addresses what we consider to be a duty to use what we know, to help prevent the same thing happening again. This is where we have a unique contribution to make to the patient safety system…” They would not be able to fulfil this function without a system of accountability for medical negligence, and bringing valid claims against the NHS helps to drive the patient safety system forward, whilst providing compensation to the injured patient to lessen the impact of the negligent treatment.

Making a complaint to the NHS without having to sue

Should you not wish to sue the NHS for medical treatment, but would still like to make an official complaint about the treatment received, you are able to submit a complaint with the NHS Hospital Trust or Primary Care Practice where the treatment was administered. Each individual health trust will review complaints using their own complaints procedure. If you’re not happy with the response you can escalate the matter by submitting your complaint to the Parliamentary and Health Service Ombudsman.

How can I sue the NHS for negligent treatment?

Should you wish to sue to the NHS for negligent medical treatment it is important to establish and prove:

• Negligence
• Causation
• Damages

Establish Negligence

In order to establish negligence on behalf of the medical professional (or medical team) responsible for your treatment, it is essential to prove that there was a failure to deliver a level of service and care equal to that which would be expected of a reasonable body of medical professionals in the same field. If a reasonable body of competent medical practitioners in the same field were faced with the same issue, and acted in the same way, then negligence cannot be proven. You cannot make a claim for medical negligence simply based on the fact that your treatment was unsuccessful, or that the outcome was not as was hoped for.

It is necessary for your solicitor to obtain evidence from an independent medical expert, operating in the same medical field, in order to establish negligence. For example if your claim is against an obstetrician then another obstetrician will be consulted to provide their expert medical opinion. The medical expert will assess your claim by reviewing your medical records and, in most cases, by examining you before preparing a report.

Prove Causation

The next step is to prove a link between the negligent treatment and your injuries, further illness and/or financial loss. You need to be prove that these were caused as a direct consequence of the negligent treatment.

Quantify Damages

The final step in making a claim against the NHS is to quantify the amount of compensation that you should receive for the pain, suffering and financial loss that you have incurred as a direct result of the negligent treatment.

Financial losses are not limited to the income lost through being unable to work during your recovery period, but also include future lost income if you are left unable to carry on doing the same job as before, or are left incapacitated to work altogether. Financial compensation will also be quantified by your expected ongoing and future care needs, and if you need any specialist equipment or home adaptations.
An independent medical expert will often be consulted to report on client damages.

Three year limitation period on making an NHS negligence claim

You must make a claim within three years of receiving the treatment, or within three years of being made aware that your illness or injuries were caused as a result of the negligence. The exceptions to this rule are when cases involve children or those who are mentally incapacitated to make a claim themselves. Children do not face the medical negligence claims time limit of three years as a claim can be made by an adult on their behalf at any time before they turn 18. There is no time limit to make a claim for those who are mentally incapacitated to make a claim themselves.

If a family member or loved one has passed away as a result of negligent medical treatment, the deceased family can make a claim on behalf of their estate within three years from the date of death.

Making an NHS negligence claim

If you have suffered as a consequence of medical malpractice you should contact TRUE Solicitors as soon as possible. We will take into consideration the specific details of your medical negligence claim and let you know if we think you have case, including the likely amount of compensation that you can expect to receive.

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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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