The United Kingdom is very lucky as a nation to be served by the NHS (national health service). The NHS is a beloved British institution and is one of the cornerstones of British culture and identity today. To the majority of us, the thought of losing the NHS is unconscionable, in fact, support for the NHS is one of the most strongly cross-bench bipartisan issues that exists in British politics.
The NHS not only treats patients for free, it is renowned throughout the world for the quality of the healthcare that it provides. The vast majority of the millions of patients who pass through the NHS every year, whether through hospitals, doctors surgeries, or other more specialised healthcare facilities, have a positive experience. However, people aren’t perfect, inevitably there are mistakes made sometimes, and in some cases these mistakes might even rise to the level of clinical negligence.
What is Clinical Negligence?
Not every mistake that occurs while under the care of medical professionals, even if the mistake was easily preventable, will qualify as clinical negligence. Some of the most common examples of clinical negligence include mistakes made during surgery or another procedure, prescribing or dispensing the incorrect drug, failing to obtain informed consent, failure to disclose the necessary risks of a particular treatment, and either failing to diagnose a condition or diagnosing it incorrectly.
It should be noted that these incidents occurring is not enough in itself to make a medical negligence claim. In order for such a claim to proceed there has to be clear injury, either physical or psychological, that the patient has suffered as a result of the mistake that was made. Incidents which don’t qualify as medical negligence are referred to as either ‘medical accidents’ or ‘patient safety incidents’.
The test that all medical negligence claims must satisfy is known as the Bolam test. Under this test, the plaintiff (the person seeking compensation) needs to show that a duty of care existed between the patient and the medical staff who are responsible for their care. Demonstrating that the duty of care exists is the easy part, simply by virtue of admitting you to hospital the NHS is accepting a duty of care towards you. It is the other part of the Bolam test that is harder to prove. The second test criteria is whether an act or omission on the part of any of the staff responsible for the patient’s healthcare breached that duty of care and caused harm to the patient.
Taking Legal Action
If you believe that treatment that you received while under the care of the NHS constitutes a case of medical negligence then you should consult with medical negligence solicitors such as The Medical Negligence Experts, who offer free consultations over the phone. The best medical negligence solicitors will be happy to discuss the merits of your claim with you without charging a fee. In fact, many medical negligence lawyers operate on a no-win, no-fee basis. This means that you will only have to pay them for their services if you are awarded financial compensation.
You can also pursue a medical negligence claim on behalf of someone else if you are their next of kin and they have either died as a result of medical negligence, or they don’t have the capacity to pursue the legal claim themselves.
There is no requirement for plaintiffs to first approach the hospital or NHS before pursuing a legal claim, but you should be aware of the existence and function of the NHS Litigation Authority (NHSLA). The NHSLA represents the NHS during legal disputes and other claims and complaints. While you aren’t required to speak to them before pursuing your claim, many plaintiffs will find it helpful to do so. By having the NHSLA investigate your case, you will be able to get the other side of the story, this will help you, and your solicitors, to make an informed decision as to whether it is worth proceeding with the claim.
If you make a complaint to the NHSLA and then begin a clinical negligence claim, they should not affect one another. The only circumstances in which they would conflict is if a judge rules the NHSLA investigating the complaint would jeopardise the legal claim.
Above all else, you should remember that pursuing a legal claim is an expensive and time-consuming process. If you hire solicitors who will only charge you if you are awarded financial compensation for medical malpractice, then you will not have to worry quite as much about the costs of pursuing the claim, but you will still be in for a relatively difficult and stressful time. To give yourself an idea of what to expect, try searching online news stories for ‘medical negligence UK’ or medical ‘negligence claims UK’, have a read up on past cases and see if you can find details of individual experiences.
If your case is successful and a judge rules in your favour, you will be awarded financial compensation. Note that the judge only has the power to award monetary damages, the judge does not have the authority to force individuals to apologise, to mandate for changes in hospital procedures and policies, or to forcibly remove individuals from their current roles.
The amount of money you receive will be calculated according to a number of different factors. In essence, the award will reflect the level of suffering and injury that you have endured as well as any additional costs you may be facing as a result of malpractice. Examples of factors affecting your award include compensation for activities and hobbies that you can no longer take part in, loss of earnings arising from your inability to work, the cost of any equipment that you now require, the costs of having to adapt your home, and compensation for psychological damage or emotional distress.
Claims for medical negligence must be pursued within three years of the incident occurring. In cases where there is a delay in the onset of symptoms resulting from medical malpractice, the three year countdown will begin when those symptoms become apparent. In the case of children, or those who were children when incidents occurred, the three year time limit won’t start until the plaintiff’s 18th birthday.
In cases where a claim is being pursued on behalf of someone who lacks the capacity to manage their own affairs, this three year time limit doesn’t apply until they recover from their disability. If they do not recover then they are exempt from the time limit. You should take advice on your potential claim as soon as possible after the incident.
If you believe that you have been the victim of medical negligence then you should consult with solicitors about whether it is worth pursuing financial compensation. There are a number of different ways that you can fund your case if you are working with a solicitor who requires you to pay regardless of the outcome. The Legal Aid scheme which provides funding to those facing criminal charges can no longer be used to fund clinical negligence claims, however some insurance policies have provisions for clinical negligence claims. There is also an organisation called Action Against Medical Accidents who can help you source funding and representation.