So, you feel you’ve been injured and want to pursue a medical negligence claim… but you feel guilty about suing the NHS. What should you think about before instructing a solicitor?
Kirsty Parkes is a Solicitor and Senior Litigation Executive at Patient Claim Line specialising in casework relating to medical negligence cases and serious injuries. Kirsty has over 10 years personal injury experience and has specialised in medical negligence and serious injuries for four years.
I think that we can all agree that we are extremely lucky to have the NHS here in the UK.
Since 1948 the NHS has provided life-saving health and social care, essentially “free of charge”. Technically this is funded through taxes, however, we are different to a lot of other countries where expensive insurance policies are required to cover the costs of healthcare.
The Covid-19 pandemic has demonstrated just how lucky we are to have access to the NHS; one of the safest healthcare systems in the world.
During lockdown, millions of us stood on our doorsteps each week, clapping for carers and displaying our gratitude for the sacrifices that healthcare workers make for us each day.
And whilst the standard of care provided by the NHS is usually exceptionally high, sometimes, however, mistakes are made. Mistakes which can end in patients suffering lifechanging injuries.
When news outlets are continually reporting on increased pressures in the NHS and ever-increasing costs of healthcare, many of us, as a result, are reluctant to pursue a claim for medical negligence compensation.
Everything considered, what should you think about before making a final decision?
What you need to prove in a successful medical negligence claim
A claim for medical negligence cannot simply be made on the basis that a recommended path of treatment went wrong or your recovery took longer than expected.
Unfortunately, there are risks associated with medical procedures and medications. Therefore, medical practitioners warn of certain dangers before taking any medication or undergoing treatment.
Consent forms are also signed in many circumstances.
However, if the treatment you receive falls below ‘a reasonable standard of care’ by a responsible body of medical practitioners skilled in that particular area, a breach of duty may have occurred.
As well as establishing there was a breach of duty, it must be established “on the balance of probabilities” that the injury has been caused by the breach. In other words, there’s a greater chance that harm or damage was caused because of the practitioner’s breach than not.
How the NHS responds following a medical negligence claim
Establishing a breach of duty may sound daunting and as a medical negligence solicitor I can completely appreciate that.
With Patient Claim Line, if a claim is taken on, one of the big differences we can make is seeking independent advice from expert medical practitioners and applying our vast wealth of collective expertise and experience to the consideration of a claim.
If a breach of duty and causation are established, a claim will be presented to the NHS in a “Letter of Claim”.
This means that the detailed allegations will be set out in writing before Court proceedings are issued.
Similarly, before responding to the Letter of Claim, the NHS’ legal representatives will seek their own independent expert advice.
If there is a dispute between the independent expert opinions, Court proceedings may have to be issued and the case may need to go before a judge to determine which party’s evidence stands up to logical analysis.
Who pays out for medical negligence compensation?
The law in England and Wales provides that compensation should be awarded in a way that would put the injured party back into the position that they were before the negligence occurred.
As it is not possible to turn back the clock and prevent an injury from happening in the first place, a financial award is made.
In addition, you could be compensated for your other losses that relate to the negligence, such as for:
- Any treatment, aids, or equipment you have purchased or will need to purchase in the future
- Care and assistance (either paid or provided gratuitously or free of charge)
- Incurred and anticipated loss of earnings
- Adaptations to your home
Therefore, not only does a successful claim result in a financial award, but measures can also be put in place to support you to help you along your road to recovery.
In any case where someone has sadly died as a result of a breach of duty, compensation can be awarded on behalf of the Estate of the deceased person.
The compensation will then be in respect of any:
- Pain and suffering
- Funeral expenses and other losses
In addition to this, compensation can be awarded to the deceased’s “dependents”. For example, their spouse and their children.
This could include an award for the dependency on the deceased’s earnings and/ or services and a lump sum representing in relation to the bereavement of a loved one.
Claiming may prevent a similar incident happening to someone else
My clients often tell me that one of the main reasons for pursuing a medical negligence claim is to prevent others from being put through a similar ordeal.
NHS Resolution, who represent the NHS when a medical negligence claim is pursued, will, when presented with a medical negligence claim, instigate an investigation to determine the circumstances surrounding the claim, and the allegations of negligence that have been made against the NHS Trust.
According to their website, one of NHS Resolution’s main functions relates to safety and learning, and to help providers of NHS care learn from their own mistakes and improve safety standards throughout the NHS.
This will often lead to actions being taken to prevent similar incidents in the future, such as:
- Requiring the at-fault clinician(s) to undergo additional training
- Putting additional measures in place within the NHS Trust or department to ensure that additional safety checks are made to prevent similar incidents happening again in the future.
In the most serious cases, at-fault medical practitioners can face disciplinary action and even be prevented from practice.
Not only can this help prevent others from experiencing injury, but it can also, in turn, result in fewer cases of this nature being made against the NHS in the future.
Don’t worry about going to court – there are other solutions available to you
Medical negligence claims can be extremely stressful and upsetting to individuals and their families.
The thought of having to go to Court and relive your experiences in front of a judge is never an enviable task.
However, most medical negligence claims are resolved without the need to go to Court, and often through what lawyers refer to as “Alternate Dispute Resolution”.
This could be in the more “traditional” sense where your lawyers make offers on your behalf. The NHS Trust’s representatives will then consider and respond to this or by way of a mediation or a settlement meeting. Here, the parties will meet either face-to-face or remotely and enter a negotiation to put forward their arguments and attempt to resolve their issues amicably.
This method will also often result in an apology being offered to the injured party, which to some can feel more valuable than the compensation they are awarded.
Patient Claim Line have an excellent working relationship with NHS Resolution and their solicitors. We frequently engage in settlement meetings in order to resolve claims as quickly as possible, at the same time as achieving great results for our clients.
You are within your rights to question medical treatment
Understandably, some clients worry that if they make a claim against their GP or hospital, that their future treatment could be negatively impacted.
If you are unhappy about your treatment, you are entitled to change your GP or request that you are not receiving treatment by a certain clinician at a hospital or other treatment facility.
Medical practitioners have a “duty of candor” (in other words, a duty to own up to their mistakes) and do not purposely mistreat their patients.
If you feel you have been mistreated, your medical practitioners will likely understand if you no longer feel comfortable being treated by them in the future and will help you find another practitioner who can manage your treatment.
If you experience medical negligence, Patient Claim Line are here to support you in making a claim. There is a maximum of three years to issue Court proceedings from the “date of knowledge” of a potential claim; we therefore recommend instructing a solicitor who can investigate your claim as soon as possible.
Call 0330 107 5318