Suing the NHS for Negligence

What is NHS negligence? 

NHS negligence is the same as any other medical negligence case. If a medical professional working for the NHS has acted negligently and caused you or a loved one harm or injury, you may have an NHS negligence claim.

The grounds for suing the NHS

You must show that the healthcare provider who gave NHS care acted negligently, resulting in harm or injury to you or a loved one. Medical negligence claims require proving that the healthcare professional failed to meet the expected standard of care and, as a result, you suffered harm.

Pre-action protocol

Before you begin legal proceedings, you must follow the pre-action protocol for the resolution of clinical negligence disputes. The protocol outlines the steps a court expects you and your healthcare provider to follow before starting any court proceedings. It applies to any medical negligence claim against a hospital, GP, dentist, and other healthcare provider (both NHS and private).

The protocol sets a process and timetable for exchanging relevant information, allowing you and the healthcare provider to understand each other's case. It encourages a 'cards on the table' approach when something has gone wrong with your treatment and can lead to a settlement.

Obtaining health records

If you have already made an NHS complaint or decide not to do so, the first step is to request a copy of your medical records. The records should be sent to you within 40 days of your request. Your records should then be sorted into an indexed and paginated bundle. Sometimes, your health records from another healthcare provider may be relevant, so they should also be obtained and bundled.

Rehabilitation

Your lawyer will work with the healthcare provider to determine whether you have reasonable needs that could be met as early as possible under the Rehabilitation Code.

Early issue

The protocol allows a healthcare provider four months to investigate and respond to a letter of claim before court proceedings are started. If you must start proceedings to meet a statutory time limit before completing the protocol, the court usually stays the proceedings to allow time to complete the protocol.

Enforcement of the protocol and sanctions

The court may impose sanctions if you or the healthcare provider do not comply with the protocol. It will assess the impact of any non-compliance when deciding on any penalty. It is unlikely to penalise minor breaches.

Litigants in person

If you are pursuing a claim without a lawyer, you must still follow the protocol. If the healthcare provider knows you have no lawyer, they should send you a copy.

Letter of notification

After reviewing the medical records, an early letter of notification may be sent to the healthcare provider, notifying them that a letter of claim is likely to be sent. In response, they should say who will be dealing with the matter and where to send the letter of claim. They should consider starting their investigations.

Letter of claim

The next step (usually after getting initial advice from medical experts) is to send a letter of claim to the healthcare provider and the National Health Service Litigation Authority. 

The letter should:

• clearly summarise the facts and your allegations of negligence
• describe your injuries, present condition and prognosis
• outline your financial losses
• state how your claim is funded
• identify the discipline of any medical expert you have used. 

The letter of claim must refer to relevant medical records and enclose copies of any not already seen by the healthcare provider, such as GP records if the claim is against a hospital. You may want to make a settlement offer at this stage in more straightforward cases. 

Court proceedings should not usually be issued within four months of the letter of claim.

Letter of response

The healthcare provider will acknowledge your letter of claim in 14 days, identifying who is dealing with the claim, and provide a full response in four months. The response should state if:

• Liability is admitted
• Part of the claim is admitted. Clearly identifying which issues of breach of duty and/or causation are admitted, which are denied and why.
• The claim is denied. Making specific comments on the allegations of negligence and their version of events if they dispute your version.
• Evidence has been obtained, identify the disciplines of expert evidence they have relied on and if they relate to breach of duty and/or causation;
• They require copies of any relevant medical records.
• Provide copies of any additional documents relied upon.
• Not indemnified by the NHS, supply details of the relevant indemnity insurer
• Inform you of any other potential defendants to the claim.

If you made a settlement offer, they should respond to it. They may make a counteroffer, and if they do, they should provide enough medical evidence so that you can adequately consider their counteroffer. 

Experts

Medical negligence claims often need separate expert opinions on the following:

• breach of duty
• causation
• your condition and prognosis
• valuing aspects of the claim.

Both parties are encouraged to cooperate when deciding on the appropriate medical specialities, if experts might be instructed jointly and whether to share any pre-action reports. 

Obtaining expert evidence is expensive and takes time, especially in specialised areas of medicine where there may be a limited number of suitable experts.

Alternative Dispute Resolution

Litigation is intended to be a last resort. The protocol encourages you and the healthcare provider to consider whether negotiation or alternative dispute resolution might help settle the claim without having to start proceedings. An offer to mediate should not be unreasonably refused as the court, in any later proceedings, can penalise unreasonable conduct when it decides costs issues.

Court procedure

To start court proceedings, various documents must be filed in court with the court-issued fee. These include a claim form, particulars of claim, and a schedule of loss; a notice of funding may also be required.

The claim form and particulars set out the brief facts of the negligent medical care and the legal basis on which you hold the NHS healthcare provider at fault. Expert medical reports will also be attached to support your claim. The schedule of loss sets out your financial losses to date and any expected to continue in the future. A specialist lawyer should prepare these formal court documents in a medical negligence claim.

The court seals the claim form and gives it a unique claim number to issue a claim. The court documents must then be served within four months of the issue date; once served, the defendant may acknowledge service and then serve its defence. The defence is a formal reply to the claim stating what is agreed or disputed and why.

At this point, you and the defendant complete questionnaires so that a judge can set directions, essentially a timetable of steps that must be completed to prepare the case for trial. The judge does this at a hearing called a Case Management Conference. At the same time, the judge usually sets a budget limiting the amount of legal costs that both you and your defendant can spend on the legal claim.

The exact timetable of directions varies from case to case but will include when the parties disclose all relevant non-expert evidence (such as proof of financial losses), when witness statements must be exchanged and when any further medical expert evidence is disclosed if needed. A trial date is usually set later.

No win, no fee claims

No-win, no-fee agreements are the most common way to fund an NHS negligence case, providing a solution for people who cannot afford to pay for legal expenses upfront.

In a no-win, no-fee arrangement, your solicitor shares the risk of the case losing, as they will not charge you their costs if you lose. However, other expenses such as expert witness and court fees must still be paid, so you should take out insurance cover to pay these expenses if you lose. You only pay the premium if you win. The policy will also pay the defendant's costs if they win but fail to beat a settlement offer made by them.

If you win, the other side usually pays your solicitor's fees; however, it is important to note that your solicitor will also charge you a success fee, a percentage of your compensation, which is capped at 25%.

Time limits to sue the NHS

In England & Wales, there are strict time limits for filing a claim in court to be issued. Generally, you have three years from the incident date or when you became aware of the negligence to bring a claim; however, there are exceptions, such as claims by children or someone lacking mental capacity.

You must speak with a specialist solicitor as soon as possible, as they will advise you on the likely limitation period in your case.

NHS compensation payouts

If you win your claim, the NHS will pay you compensation, which is meant to put you back in the position you were in before the medical negligence. The amount, therefore, depends on various factors, such as the severity of the harm and its impact on your life.  

In injury claims, there is a payment for the pain, suffering and loss of amenity caused by the medical negligence. This part of the compensation is sometimes also called PSLA or general damages. This is assessed by examining what court awards have been made in similar circumstances. 

The Judicial College Guidelines, which are published annually, provide a useful overview of compensation bands for various injuries.

The other part of a compensation claim is for any financial losses arising from the injury caused by the negligence. These are sometimes called special damages. They can cover any financial loss attributed to the injury caused by the negligence, but common losses include loss of earnings, loss of pension, care and assistance, medical treatment, and aids and equipment. In cases involving serious injury, they can also include accommodation costs, case management fees and deputyship costs.