Medical negligence is what happens when a healthcare professional makes a mistake or fails in their duty of care towards you. The action ends up hurting the patient, with the damage ranging from the very mild to the truly severe. Many patients may feel entirely despondent in the aftermath of such an event and some might begin avoiding going to the doctor altogether from that point on, a problem in itself. If you’re in the UK and were the victim of such an incident you probably want to know how the NHS handles these situations.
An overview
The NHS deals with medical negligence through a dual process that involves internal complaints as well as the legal duty of candour, and formal compensation claims managed by NHS Resolution. You can have a look at some high-profile NHS pay-outs to get the gist of what to expect but the key aspects are pretty much the same. There’s a governing body known as NHS Resolution that deals with clinical negligence claims and disputes. Claimants must be able to establish that the healthcare worker had a duty of care towards them that they breached through sub-standard treatments.
They must also show that the breach was a direct cause of the injury. The settlements will vary depending on the severity of the harm, with the most extreme cases which led to life-altering conditions and long-term disabilities receiving the highest amounts in compensation. Typically, the cases are handled through out of court negotiations, but going through with a full trial isn’t exactly unheard of it either. It all depends on the specifics of your case.
The process
The NHS complaints process requires a layered approach that takes several things into consideration. First, you’ll file a formal complaint directly with the responsible NHS Trust or GP practice. As a general rule, you should try to make the complaint no later than 12 months (the statute of limitations is three years from the date of the incident) since the full details of the event will become blurry, making it more difficult to prove what happened. However, in the event that the health damage was so severe that a lengthy recovery period was needed you should file the complaint at your earliest convenience. Family members can file a complaint in your name if you can’t do it yourself or have given them permission to do so.
Then there is the duty of candour, which dictates that all NHS organisations are legally required to be open and honest. This means that they have to provide an explanation and an apology as well as carry out internal investigations to determine where the mistakes happened. Your complaint must be acknowledged within three working days and give you a full written response outlining the next few steps. The response should also outline any learning or changes. If you’re not satisfied with this local response you can take things further, to the Parliamentary and Health Service Ombudsman. This is an independent body that investigates complaints from the public related to unfairness, poor treatment, or maladministration.
The investigation is completely free for everyone and in order to reach them you must first file a complaint with the NHS body and give them a chance to fix the problem themselves.
Who handles the claims?
Let’s get into the legal claims and compensation. They are typically managed by NHS Resolution on behalf of the NHS Trusts. That means that the claims are brought against the organisation itself instead of the physicians or nurses. The funding is drawn from specialised insurance pools including the Clinical Negligence Scheme for Trusts. Ongoing patient care isn’t affected after completing a claim, so there’s no need to worry on that account.
You might want to hire a specialist solicitor so that they can handle the claim for you. In that case, you want to find a specialist that focuses on medical negligence specifically as they have a better grasp of the specifics of your case. Most solicitors offer a Conditional Fee Agreement also known as No Win, No Fee. This means that, should your claim be unsuccessful, you are not required to pay any legal fees. Law firms provide free initial consultations and assessments to review the details of your case and tell you if it’s strong enough to pursue in the first place as well as how much you can expect to obtain in compensation.
Solicitors know how to talk to the other specialists involved in your case, from those who will review your records to the independent doctors that will provide their expert opinions on the situation. The purpose of your solicitor will be the same: to prove that the healthcare you received was below the acceptable standards and that it is this failure that caused your injuries. A solicitor can also manage discussions with NHS Resolution on your behalf.
What constitutes negligence?
Before going ahead with a negligence case it’s important to know if it would actually be considered as such by the authorities. The core legal test must be established on two specific elements on the balance of probabilities: a breach of duty and avoidable harm. The former means that the care received falls bellow even the minimum standard expected of a healthcare professional who is at least reasonably competent, while the latter means that the breach of duty won’t apply if the harm cannot be measured by physical, emotional, or psychological standards; it doesn’t count as negligence.
Common examples include misdiagnosis or delayed diagnosis, preventable mistakes made during surgery, errors in prescriptions or medications, maternity and birth injuries, failure to obtain a patient’s informed consent ahead of a new procedure, and the failure to refer a patient to a specialist if their symptoms require expert evaluation.
In conclusion, if you want to file a compensation claim you should do so as soon as you’re able to. Make sure to gather all the proof you need in order to ensure your success and don’t hesitate to ask for help from a legal professional if you think you need it.
