Medical Negligence

Suing the NHS

The NHS provides an essential and excellent service to millions of people in the UK, but sadly, mistakes do happen. You may be entitled to compensation if you have been harmed by NHS negligence.

There are many different types of NHS negligence, including:

  • Misdiagnosis: This is when a doctor or other healthcare professional fails to diagnose a patient’s condition correctly.
  • Delayed diagnosis: This is when a doctor or other healthcare professional fails to diagnose a patient’s condition in a timely manner.
  • Surgical errors: This is when a surgeon makes a mistake during surgery, which can lead to complications or even death.
  • Medication errors: This is when a doctor or other healthcare professional prescribes the wrong medication or gives the wrong dosage.
  • Failure to provide adequate care: This is when a doctor or other healthcare professional fails to provide the necessary care to a patient, which can lead to complications or even death.

If you think you have been harmed by NHS negligence, getting legal advice as soon as possible is important. A medical negligence solicitor will be able to assess your case and advise you on your legal options.

What is the NHS?

The National Health Service, usually known as the NHS, is the state-funded healthcare system of the United Kingdom. Created in 1948, the basic principle of the NHS is to provide free at-the-point of access healthcare. Some exceptions exist to the free treatment principle for prescriptions, dental care, eye care, wigs and fabric supports.

The NHS, in fact, is not a single entity. It comprises many organisations, such as hospital trusts or GP practices, and private dentists or opticians who carry out NHS work. The NHS organisations, when taken together, employ some 1.3 million people.  

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 in a negligent manner and caused you or a loved one harm or injury, you may have an NHS negligence claim.

Can I sue the NHS?

If you think that you have a claim against the NHS, and want to sue the NHS, here are a few points to consider:

Bolam test

The legal standard of medical care in England & Wales is objective and based on the general practice of doctors in England and Wales. Often called the ‘Bolam test’, after the legal case which first used it, the test provides that a doctor must exercise the skill and care of a reasonably competent member of their profession. A doctor is not considered negligent if they acted “in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. 

However, there is an exception to this test when considering if a doctor’s advice on the risks of treatment was negligent.

Causation

Even if a breach of a duty of care is established, you must also prove that the breach has caused or materially contributed to your harm or injury. Another way of looking at this is to prove that the harm or injury would not have occurred anyway.

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.

Is it ethical to sue the NHS?

People injured by NHS negligence often face the moral dilemma of whether it is right to sue the NHS. It is important to remember that if the NHS negligence significantly affects your quality of life, you may need financial assistance. People who sue the NHS look to regain their previous quality of life, rather than gain a financial advantage. People also often want to prevent the negligence from happening to anyone else. The legal process uncovers errors and can lead to positive changes, avoiding harm to other patients.

The claims process

Pre-action protocol

Before you begin legal proceedings, you must follow the pre-action protocol for the resolution of clinical negligence disputes. It sets out the steps that 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.

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, then you must still follow the protocol. The healthcare provider should send you a copy if they know you have no lawyer.

Obtaining health records

The first step, if you have already made an NHS complaint or simply decide not to do so, 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, in which case they should also be obtained and bundled.

Rehabilitation

As early as possible, it should be considered with the healthcare provider whether you have reasonable needs that could be met under the Rehabilitation Code.

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 own 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. In more straightforward cases, you may want to make a settlement offer at this stage. 

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 properly consider their counteroffer. 

Experts

Medical negligence claims often need separate expert opinions on:

             • breach of duty

             • causation

             • your condition and prognosis

             • valuing aspects of the claim.

The 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 some form of 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 at court with the court issue fee. The documents 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 of the claim 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. In a medical negligence claim it is important that a specialist lawyer prepares these formal court documents.

To issue a claim, the court seals the claim form and gives it a unique claim number. The court documents must then be served within 4 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 setting out what is agreed or disputed, and the reasons 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 provide disclosure of 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 a medical 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%.

“Her focus is always on client care, and she is always looking out for the needs of clients and their families following significant injuries. Her focus on the client is inspiring.” Legal 500

Time limits to sue the NHS

In England & Wales, there are strict time limits for filing a claim at 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.

How much compensation does the NHS pay?

If you win your claim, you will be paid compensation by the NHS 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 medical negligence. These are sometimes called special damages. They can cover any financial loss attributed to the injury caused by the medical 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.

“Her experience and knowledge are second to none and she has the determination and dedication to get excellent results for her clients. She is calm, considered and intellectually rigorous in her approach to cases yet empathetic and supportive to clients” Legal 500

Do I need a solicitor to claim against the NHS?

You do not need a lawyer to make a claim for medical negligence. However, we strongly recommend using an experienced lawyer with a track record in medical negligence cases. 

Medical negligence is a specialist area of law and requires knowledge and experience to prove a case and get the full compensation you are owed.

Legally, a claimant has the burden of proving their case, and in a medical negligence claim, the burden of proof is on the balance of probability. This means proof that it is more likely than not. Whilst you will rely on contemporaneous medical records and witness evidence, medical negligence claims also need expert medical evidence. The expert medical evidence is critical in proving the standard of care expected of the healthcare provider, whether it was breached, and, if so, what harm or injury was suffered by you as a result. You must provide evidence to support all aspects of the claim and meet the required burden of proof to ensure your claim is valid.

Why choose us?

Our team of solicitors have the knowledge, experience, and proven track record to help you make a successful claim. Our team are recognised and accredited in the legal directories and across many organisations, including being on the Law Society Clinical Negligence panel, Action Against Medical Accidents panel, Headway, and the Spinal Injury Association trusted partnership.

FAQs

How much does the NHS pay out each year?

According to the latest figures, the NHS paid around £2.4 billion over 12 months to cover the cost of compensation claims. Most of this figure was for the damages paid to people to compensate for the harm caused by the negligence of NHS staff, with roughly a quarter spent on the associated legal costs.

Why are claims against the NHS on the increase?

Between 2016 and 2019, NHS claims were consistently around 10,500 a year; however, the last available figures show that the number of claims has climbed to over 15,000. Undoubtedly there are many factors behind this increase; however, it does appear that the level of medical care in the NHS has worsened recently.

Will making a claim affect my current treatment?

Making a claim against the NHS should not affect your current treatment.  

What is the most common claim against the NHS?

In the latest NHS statistics, the most common claims were about poor emergency medical care.

Can you sue the NHS for emotional distress?

You may be able to sue the NHS for emotional distress if you can prove it was caused by your medical care falling below the required standard. If emotional distress is your only injury, then it must be serious enough to be diagnosed as a recognised psychiatric disorder. However, if a physical injury can also be proven, emotional distress may be claimed, even if it does not meet a psychiatric disorder threshold.  

Can you sue the NHS for the death of a loved one?

You may be able to sue the NHS if a loved one dies due to the negligence of the NHS. If you think that you lost a loved one due to poor NHS care, then you should take legal advice.

Can you sue the NHS for a stillbirth?

There are over 3,000 stillbirths every year in the UK, and in many cases, there is nothing the NHS could have done to avoid this devastating loss. 

However, if there have been failures in care, it may be possible to sue the NHS for a stillbirth if the actions of a medical practitioner contributed to the death of your baby. Examples may be failing to assess the mother’s risk factors or not monitoring the baby properly.

How many claims are there each year against the NHS?

In the last available figures from the NHS, there were over 15,000 claims against the NHS. This figure has been increasing over the last 5 years.

Is it safe to have treatment on the NHS?

The vast majority of NHS patients are treated safely on the NHS. However, things sometimes go wrong when medical treatment falls below the acceptable standard. This is when you should take legal advice on a medical negligence claim.

Do the NHS settle out of court?

In most cases, if the NHS accepts liability for your injury, it will settle your claim without needing a court trial. Less than 5% of all clinical negligence claims will end up going to trial. The vast majority will settle out of court.

Medical Negligence - Suing the NHS

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