Taking legal action against the NHS for clinical negligence

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By Oliviah Rix-Taylor

on Thursday 25 January 2018

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The majority of us using the NHS usually experience good service and never encounter any serious problems. But mistakes in your care can occur and things can go drastically wrong. This page will explain the process of taking legal action against the NHS for clinical negligence in order to receive compensation.

Legal action against the NHS for clinical negligence

Being injured as a result of medical negligence allows you to take legal action to receive compensation. If you are the next of kin then you can take legal action on their behalf if;

  • They died as a result of negligent medical treatment
  • They do not have capacity to take legal action for themselves

Using the NHS complaints procedure prior to commencing legal action may provide you with more information about what went wrong with your care, however this is not a necessary step in making a claim. Starting a claim for clinical negligence should not delay the investigation of your complaint through the NHS complaints procedure unless in very rare circumstances.

It is advisable that you seek expert legal advice when wishing to initiate a claim for clinical malpractice as the process can be complex. It is important to remember that a clinical negligence solicitor can help you receive financial compensation but cannot;

  • Actively discipline the negligent healthcare professional
  • Force a hospital to change their current practices
  • Make a healthcare professional apologise

However, in many cases all of the above have happened as a result of the medical negligence case that was brought to the courts attention.

The NHS Litigation Authority (NHSLA)

The acting body representing the NHS in a legal case is usually the NHS litigation Authority. 98% of cases handled by the NHSLA are settled out of court or dropped which means you will rarely have to take your case to court. All past, current and prospective claims are held on the NHSLA’s database.

Compensation Schemes for generic cases

Compensation schemes are in place for certain losses and injuries in which compensation is available without having to go to court.

Examples of Compensation Schemes include those in place for Asbestos related illnesses where victims can receive lump sum pay-outs from the government.

What constitutes as Clinical Negligence

Some examples of clinical negligence include;

  • Failure to accurately diagnose your condition or misdiagnosis
  • A mistake arising during surgery or general procedure
  • Wrong prescriptions
  • No consent for treatments
  • Failure to correctly tell you about the risks involved in your treatment

A medical accident or patient safety incident does not necessarily mean that someone acted negligently. In order to claim compensation for your clinical negligence it must be shown on ‘the balance of probability’ that:

  • The treatment and care you received was not to medically accepted standards
  • This negligence in your treatment led directly to personal harm.

It can be difficult to prove that these instances are linked so it is highly advisable to seek the advice of a specialist solicitor who is experienced in clinical negligence cases.

Your compensation

Compensation can be claimed for anything that was a direct result of the negligent treatment that you received from a health care professional. This can include:

  • Psychological damage
  • Loss of earnings
  • Home adaptations such as wheelchair access
  • Additional care
  • Pain and suffering
  • Any ongoing treatment you still need
  • Loss of hobbies and activities

Before your compensation amount is calculated, the court will take into account any social benefits you are entitled to receive as a result of your injury.

Time Limits

There are certain time constraints that apply to medical negligence claims. The typical time between injury occurring and starting a claim is a maximum time of three years. Exceptions to the 3 year rule arise for children, in which case they must start their claim within 3 years of turning 18, and for patients with a mental disability. If they recover from their disability then the three year limit starts from the date of recovery. In both these instances, a parent of other close persons can make a claim on their behalf.

Due to the complexity of clinical negligence cases it is best to initiate your claims process as soon as possible following the suspected malpractice.

Using a solicitor

Solicitors will be able to look at your case and assesses whether it is strong enough to be investigated. The more information you can provide your solicitor with, the better. It is advisable to keep a record of any communications or complaints you have had with the negligent service and to record any loss of earnings and special losses.

If your case has a reasonable chance of success then your chosen solicitor will try to give you a general compensation amount that you are likely to receive.

Paying for your medical negligence claim

Your solicitor will be able to offer you varied agreements when taking on your case. These can include No Win No Fee agreements which are based on a success fee capped at 25%. Your solicitor can also advise you with regards to insurance to protect you from loss of court case fees. Ultimately, your solicitor should try to reduce the finical risk as much as possible for you.

Legal aid

Legal aid is no longer available for clinical negligence claims but some funding exists for cases involving children.

No Win No Fee Agreements

This type of agreement means that you won’t have to pay your solicitors fees if you lose the case. If your claim is successful and you win compensation then your solicitor can take a success fee as a percentage of your compensation.

A solicitor may also advise you to take out insurance to protect you from the possibility of having to pay the hospitals costs if you lose your case.

Accident Line Direct

Clinical negligence claims against the NHS will typically involve a Bolam test. This test determines whether other medical professionals would have acted in the same way given your medical case. If they deem that they would have acted differently and that the healthcare provider who treated you acted in an unreasonable way, then you will be owed compensation.

Medical compensation can be complicated and there are several steps involved in receiving financial remuneration. At Accident Line Direct we have a wealth of knowledge and experience of the clinical claims industry at our disposal. Contact us today to discuss your case with an expert.

0808 1454275

Accident Line Direct can help you begin your potential claim, get in touch today!