A Guide for NHS Hospital Medical Negligence Claims

How do you Define a Medical Negligence Claim?

Despite errors in hospitals a common occurrence, NHS Hospital Medical Negligence Claims are amongst the most difficult to bring to a successful conclusion. According to the Public Accounts Committee, 10 per cent of UK hospital patients are victims of medical negligence, which equates to one million people per year.

The reality that you have suffered a loss, an injury or the deterioration of an existing condition is not the only factor which will decide whether you are eligible to a medical negligence claim. There is the possibility that an injury could have been prevented or a condition from which you have been suffering not worsened had greater care been taken or if safety procedures were followed closer. However there is also the likelihood that the occurrence of an injury was inevitable.

Only in the situation where a medical professional showed a degree of negligence which resulted in you or a loved one sustaining a preventable injury may you be eligible to claim for medical negligence compensation.

Advice regarding medical negligence and the procedures for claiming compensation are outlined below. However this guide should not be used in place of professional legal advice and, if you or a loved one suspect that you may have grounds for a medical negligence claim, a solicitor should be contacted at the first opportunity available.

Determining Liability for Claims Regarding Medical Negligence

Just like any personal injury claim, NHS hospital medical negligence claims will require evidence that you sustained injuries which occurred due to the action – or lack thereof – of anyone who owed you a duty of care. You are expected to receive a duty of care from any doctor, nurse or hospital administrator, and are entitled to the best treatment possible. In the scenario that you suffer a loss, develop an injury or an existing condition worsens because of the lack of skill – or ability to demonstrate this skill – of a medical practitioner, those responsible can be held liable in a medical negligence claim.

Gathering Evidence to Support NHS Hospital Medical Negligence Claims

Proving that a medical practitioner has been negligent while treating a patient can be difficult. Under the law, patients can only make a claim of medical negligence if they can prove that there was a high probability that the treatment they received was negligent and resulted in an avoidable injury to their person. Independent medical experts may be required in order to assert that medical negligence had taken place under the following scenarios.

  • An injury or illness was incorrectly diagnosed or a delay occurred in diagnosis
  • Medical staff have been proven to have not taken swift enough action after receiving test results
  • An operation or procedure was performed to a poor standard
  • The administration of medication or treatment was performed erroneously
  • The follow-up procedure was performed incompetently
  • Failure to fully explain to a patient the dangers of a treatment or procedure before it was undertaken

Medical negligence claims are mostly resolved before they reach court. In the situation that a court case is required, the court will decide whether the same procedure would have been carried out in the same manner by a competent doctor. Even if you have been injured due to the actions of a doctor, if the court rules that the circumstances allowed for the actions in question to be taken and the doctor made an informed decision, they may be found not guilty of negligence.

Time in Which to Make a Claim for Medical Negligence Compensation

An important factor when making NHS Hospital Medical Negligence Claims is the date of knowledge on which you became aware of an injury, loss or worsening of a pre-existing condition. Under the Statute of Limitations Act 1990, you are allowed three years from the date of knowledge of an injury due to NHS hospital medical negligence in which to make a claim.

You are not limited to three years from the date on which the medical negligence allegedly took place, but from the date on which you received the diagnosis of the condition which arose from the alleged negligence; or, in the case of the death of a loved one from medical negligence, the date on which the autopsy reveals the cause of death.

In the case of a child who has suffered from medical negligence, by law they will be unable to make a personal injury claim. In this situation, a claim can be made on their behalf by a parent or guardian who can represent a child until they reach the age of eighteen. At this point the child will become a legal adult, and will have until their twenty-first birthday to make a claim.

If Several Parties are to Blame for NHS Hospital Medical Negligence Claims

Your injuries could possibly have been the result of the negligence of more than one medical practitioner. If this is the case, your solicitor will write a “Letter of Claim” to all the parties who have allegedly been negligent to inform them that they are being held liable for your injuries.

Twenty-one days will be given to each party to acknowledge the letter of claim, after which they will have three months in order to declare what responsibility – if any – they will accept for your injuries. When a degree of negligence has been agreed upon, negotiations will take place to decide upon the value of your compensation amount.

How a Compensation Amount for Medical Negligence is Decided

The compensation amount for medical negligence is determined by various different factors. Because of this, no two cases will be exactly alike, and you may be awarded a sum which is notably greater or smaller than somebody who suffered the exact same injury, loss or deterioration. Some of the factors which are taken into account when determining compensation for medical negligence includes:-

Claims of Medical Negligence and Liability Issues

The value of your claim is determined by a number of aspects. One such aspect is when a dispute regarding liability arises between the parties involved in the accident. The liability in medical negligence compensation claims is not always entirely clear, although there are times when the medical team are entirely at fault. However other aspects could have been to blame for injuries, even the actions of the claimant. In this case, liability will be more difficult to determine and will raise further questions. For instance, is the claimant still entitled to compensation if their own actions contributed to their accident and injury?

In medical negligence claims, if the claimant was in any way responsible for his/her own injuries this is known as contributory negligence. In NHS hospital medical negligence claims this can occur when a patient refuses to cooperate with medical practitioners, which as a result worsens the injury caused by the hospital’s negligence. This can be due to failure to attend appointments or refusal to take medication which could have assisted the claimant towards recovery. The claimant’s contributory negligence is then compared and contrasted to the negligence of the hospital. If it is decided that the negligence of the claimant surpassed that of the hospital, the claimant can be unsuccessful in their pursuit of compensation or will lose out on a large proportion of the compensation amount for medical negligence they hoped for.

Trauma

Compensation will be awarded for injuries which developed because of a medical practitioner’s negligence. The incident which caused the injury will not be deemed as important unless it can be proved that it was psychologically damaging. Regardless, your solicitor will emphasise the fear and anguish that was suffered in the hope that sympathy will be gained at negotiation stage for the trial, and that your case will be seen in a more positive manner.

Compensation for Special Medical Damages and Nature of Injury

Normally, full compensation will occur for the fees which were charged by specialists for any treatment you received to reverse the injury caused by medical negligence. Despite the fact that some injuries will be more painful than others, the compensation amount for medical negligence will depend upon how serious your injury is and the visual presence of scars. The recovery time and tenacity of the injury will also be taken into account.

Prognosis of the Injury

If an injury is judged to be permanent or it will take long-term healing, then it will be entitled to a greater amount of medical negligence compensation. Also taken into account is the age of the victim. A younger person will be expected to live longer with an injury, and will therefore be entitled to more. For instance, if a 25 year old man lost his hand he may have to live with his injury for 60 or more years. A 65 year old man who endured the same injury however may only have to live with the injury for 20 years. If ongoing specialist treatment is required for the injury in the future, this will again increase the compensation amount for medical negligence.

Loss of Amenity

Whether your injury will have an effect on your ability to perform and enjoy everyday activities will also be a factor when analysing NHS hospital medical negligence claims. If you are no longer able to enjoy pastimes which were part of your life before your injury, this will also be taken into account for the compensation amount for medical negligence.

“Loss of amenity” does not have to be permanent, but can make up a substantial proportion of your medical negligence compensation. As every person has dissimilar lifestyles, this means that no two medical negligence claims will be identical, regardless of the similarity of the injuries. In order to establish loss of amenity, it is wise to keep a diary to in order to record any instance in which you were not able to perform an activity.

Loss of Income

A significant difference in the amount for medical negligence compensation claims also occurs when loss of income is taken into account. Solicitors are often encountered with concerned claimants who are annoyed that their compensation for medical negligence is considerably less than a similar case they heard about.

However it should be remembered that the case of the other claimant may have entirely different circumstances to contend with. For instance, claimants in another case may be absent from work for a greater amount of time and are therefore entitled to more loss of earnings compensation. It can also happen where the person in the other case has a better-paid job, and therefore lost more income while in recovery. In this scenario, how serious the injury is will only be relevant when considering the amount of time a claimant was absent from work due to their recovery.

No Win, No Fee Medical Negligence Compensation Claims

If you believe that you have been the victim of medical negligence, you should consult a solicitor who specialises in NHS hospital medical negligence claims to study your case at the earliest opportunity. If your solicitor agrees that you have strong grounds for medical negligence compensation, you may be offered “No Win, No Fee” representation.

While “No Win, No Fee” has been a popular method of pursuing compensation when dealing with medical negligence, please ensure that you are fully aware of the potential costs which you may be liable for in the event that your claim is unsuccessful. While car or household contents insurance may have a legal expenses provision, further auxiliary insurance may be required. Your solicitor will be able to answer any questions which you may have regarding your claim and alternative ways of funding NHS hospital medical negligence claims if necessary.