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Clinical negligence in the NHS - taking legal action

NHS care is usually very good and most people don’t have any problems. But occasionally things can go wrong. This page tells you more about how to take legal action to get compensation for clinical negligence.

If you’ve been injured as a result of negligent medical treatment, you may be able to take legal action for compensation. You could also take legal action for compensation if you’re the next of kin of someone:

  • who has died because of negligent medical treatment
  • who can’t take legal action themselves because they don’t have capacity.

You don’t have to use the NHS complaints procedure before starting legal action but you may find it helpful to use it to find out more about what has happened. You can then make a more informed decision about whether to go ahead with a clinical negligence case. If you're thinking about taking legal action about clinical negligence, you should get specialist legal advice as soon as possible -see below.

If you start a claim for clinical negligence, this shouldn’t normally prevent or delay your complaint being investigated through the NHS complaints procedure if you want it to be. However, in very exceptional circumstances this could happen, for example, if a judge rules that the investigation of a complaint would interfere with the legal case. If you're told that legal action is why your complaint isn't being investigated within a reasonable time-scale, you should get specialist advice -see below.

Remember that taking legal action can be expensive, stressful and time-consuming. You’ll have to go over what happened to you many times which you may find traumatic and upsetting. It’s important to understand that a clinical negligence action is only about claiming compensation. The court can’t:

  • discipline a healthcare professional
  • force a hospital or individual healthcare professional to change how they work
  • make a healthcare professional say sorry to you.

The NHS Litigation Authority

The NHS Litigation Authority (NHS LA) usually represents the NHS if you make a claim against them. Fewer than 2% of the cases handled by the NHS LA end up in court. The rest are settled out of court or dropped by the claimant. The NHS LA has a database of information about all claims made against the NHS, including potential claims and 'incidents' where legal action hasn't been started yet but where a patient says they are going to make a claim.

Compensation schemes

There are special compensation schemes for some injuries and losses. You might have the right to compensation under these schemes without having to go to court.

For example, people who have contracted HIV when receiving treatment for haemophilia can claim payments from the MacFarlane Trust and compensation from the Government.

People who have suffered damage as a result of vaccinations could make a claim to the Vaccine Damage Payment Unit. For more information, go to www.gov.uk.

What is clinical negligence?

Here are just some examples of clinical negligence. You have suffered injury because the healthcare provider:

  • failed to diagnose your condition or made the wrong diagnosis
  • made a mistake during a procedure or operation
  • gave you the wrong drug
  • didn't get your informed consent to treatment
  • didn't warn you about the risks of a particular treatment.

If you’ve suffered an injury as a result of medical treatment, this may be referred to as a ‘medical accident’ or ‘patient safety incident’. This doesn’t mean that your treatment was necessarily negligent. You can claim compensation only if it can be shown ‘on the balance of probability’ that:

  • your treatment was carried out negligently, that is, the care you received fell below medically acceptable standards, and
  • this directly caused your injury.

Example

A doctor didn't properly examine a sick child who was later diagnosed as suffering from meningitis. If the parents decide to take legal action because their child suffers long-term complications, they could win the case only if it can be proved that an earlier diagnosis would have prevented the child's injuries. The fact that the doctor didn't examine the child properly isn't enough on its own.

These are difficult tests to pass, and you’ll need expert advice to work out whether you have a claim. So if you’re thinking about taking legal action, get legal advice from a solicitor specialised in clinical negligence cases.

Compensation

You can claim compensation for any injuries or losses suffered which were a direct result of the negligent treatment you received. This can include:

  • compensation for pain and suffering
  • payment for ongoing treatment
  • compensation if you can’t carry out certain activities or hobbies
  • loss of earnings
  • the cost of any extra care or equipment you may need
  • the cost of adapting your home
  • compensation for psychological damage.

A claim can be made for the next of kin of someone who has died or doesn't have capacity to make their own claim. The court will take into account certain social security benefits you get because of your injury before they decide how much compensation you’ll get.

Time limits

You must start your legal claim within 3 years from when the incident happened or when you first realised you’d suffered an injury. In the case of children, the 3-year limit doesn’t start to apply until their 18th birthday. If the claim is about a patient who can’t manage their own affairs because of a mental disability, the 3-year period doesn’t apply until (and unless) they recover from their disability. In both these cases, a parent or other person close to them can make a claim on their behalf.

It’s best to take specialist advice as soon as possible after the incident - don’t leave this until the last minute. Because clinical negligence cases are so complex to investigate, some solicitors won’t take on a case if it's within a year of running out of time.

Going to a solicitor

You should see a solicitor specialised in clinical negligence cases. There are two recognised panels of specialist clinical negligence solicitors. One is administered by the charity Action against Medical Accidents (AvMA - see below). The other is administered by the Law Society.

The solicitors will look at your case to decide if it’s strong enough for them to take it on. They will need as much information as possible. It will help if you keep a record of everything that’s relevant to your treatment and any paperwork you've got if you've been through the complaints procedure. Also, keep a record of any expenses you’ve had to pay and any loss of earnings. The solicitor will decide if your case has a reasonable chance of success and should be able to give you an idea how much your compensation you might get.

Your solicitor will discuss the best way to fund your legal claim. Different firms of solicitors have different arrangements for their clients to pay for:

  • legal expenses, and
  • insurance to protect you from costs if you lose your case.

Some solicitors will deduct a fee called a success fee from your compensation if you win, but some won’t, so it is worth choosing your solicitor carefully.

Since April 2013, legal aid to cover clinical negligence claims is no longer available. However for certain sorts of cases involving children, there is still some limited public funding, for example, if children have suffered a birth injury.

Your trade union

If you’re a member of a trade union, they may help you with the costs of a legal claim.

Sometimes insurance policies like some house insurance policies include legal expenses cover which could be used to pay for a clinical negligence claim. Often there's a set limit on the legal costs and you may have to choose a solicitor on the insurers’ own list. However, you should always ask to be referred to a clinical negligence specialist.

Conditional fee agreements (’No-Win-No-Fee’)

Conditional fee agreements are often called ‘no-win no-fee’ agreements. This means that you won’t have to pay your solicitor’s fees if you don’t win the case. However, if you win your case, some solicitors will take off a percentage of your compensation as their success fee. Because clinical negligence cases are very complex, your solicitor may ask you to pay for some initial investigations to assess how strong your case is before entering into an agreement. This may cost several thousand pounds. They may also advise you to take out insurance (‘after-the-event’ insurance) to protect you from the possibility of having to pay the hospital’s costs if you lose the case. These are complicated agreements and your solicitor will advise you about them. Be sure to read the small print carefully before you sign. For example, if the case is settled before going to court, this doesn’t count as a ‘win’ and so you may have to pay your solicitor’s fees.

You can contact an organisation called Action against Medical Accidents (AvMA) for advice about clinical negligence. AvMA can give you a list of solicitors experienced in clinical negligence claims, and offer general support.

The contact details of AvMA are:

Action against Medical Accidents (AvMA)

44 High Street

Croydon

CR0 1YB

Helpline: 0845 123 2352

Tel: 020 8688 9555 (admin only)

Fax: 020 8667 9065

E-mail: advice@avma.org.uk

Website: www.avma.org.uk

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