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Medical Negligence in NHS hospitals

Claims for medical negligence in NHS hospitals are relatively common and yet are among the most complex cases to execute successfully. 10 per cent of patients in UK hospitals are affected by medical negligence, according to the Public Accounts Committee, which equates to roughly one million patients a year.

Your eligibility to make a medical negligence claim is not solely reliant on whether you have suffered an injury. Had better care or greater adherence to safety procedures been implemented, the injury or worsening of an existing injury may have been prevented. However, it is worth bearing in mind that it is also possible the injury could not have been prevented.

You may be eligible to make a compensation claim for hospital negligence if you or a loved one have suffered an injury which could have been avoided had the medical practitioner who owed you a duty of care not been negligent.

Contained below is advice about claims for medical negligence and how you should proceed with claiming medical negligence in NHS hospitals. However it is advised that you speak with a solicitor at the earliest possible opportunity if you or a loved one has sustained an injury which you believe is due to the negligence of a medical professional, as they will be able to provide you with much more information about the options available to you.

Liability for a Medical Negligence Claim

A medical negligence claim for compensation will only be successful if you can prove that the injury you sustained came as a direct result of the negligent third party’s actions — or inactions. The medical practitioner responsible for your injury will be the liable party in a medical negligence claim should you suffer a loss, injury or the deterioration of an existing condition which “on the balance of probabilities” was due to a lack of skill or the ability to demonstrate that skill by the medical practitioner. Remember it is the responsibility of doctors, nurses and all hospital staff to provide you with the highest standard of treatment at all times.

How to Prove a Claim for Medical Negligence in NHS Hospitals

Proving a medical practitioner was negligent in their treatment of a patient can be a complex affair. This is why you should consult a personal injury solicitor if you are considering a claim for medical negligence in NHS hospitals.

The law only permits patients to make a hospital negligence claim if they can show that in all probability the treatment they received was a direct cause of an injury, and that the medical practitioner was negligent and failed in their duty of care to the patient. Independent medical experts may have to testify to demonstrate that medical negligence occurred in the following circumstances:-

  • An injury or illness was diagnosed incorrectly or there was a delay in making the diagnosis
  • Proof that medical staff did not act quickly enough after receiving test results
  • Demonstrate that an operation or procedure was executed poorly
  • Errors made when distributing medication or treatment
  • An insufficient follow-up procedure
  • If the full dangers of a treatment or procedure are not explained to a patient before administering it

Frequently, a medical negligence claim is resolved before the case goes to court but if it is necessary to pursue the case further, a court will decide if a competent doctor would have made the same choices in the same situation as the defending physician.

If the court decides that the actions taken in specific circumstances were reasonable, and that the doctor acted with sound judgement, the doctor may not be found guilty of negligence even if it can be demonstrated that their actions resulted in your injury.

The Date of Knowledge

Under the Statute of Limitations Act 1990, you are allowed three years from the “date of knowledge” to make a claim for medical negligence in NHS hospitals. The date of knowledge is the date you first became aware through professional diagnosis of an injury, loss or the deterioration of an existing condition for which medical negligence was to blame. It can also be the date an autopsy shows that medical negligence was responsible for the death of a loved one.

If you intend to pursue a medical negligence in NHS hospitals claim involving a child, please be aware that this claim is subject to different rules; as minors are not legally allowed to make personal injury claims. Until the child reaches the age of eighteen, and is legally recognised as an adult, the claim for hospital negligence on behalf of the child must be made by a parent or guardian acting on the child’s behalf. If the child waits until they turn eighteen and are of legal age, they have three years from that date to make a claim.

If Several Parties are Negligent

In the event that more than one medical practitioner or administrator was negligent, causing you to sustain injuries, your solicitor will make medical negligence claims on your behalf by writing a letter of claim to each party which may be at fault, indicating that they are being sued for medical negligence.

Each party has twenty-one days in which to respond to the letter of claim, and subsequently another ninety days in which to inform your solicitor whether they accept full or partial liability for your injuries – or none at all. Once the proportion of negligence has been determined between each of the defendants, negotiations will begin to ascertain the value of your medical negligence claim.

Determining the Value of a Claim for Hospital Negligence

A number of different factors are used to calculate how much your claim for hospital negligence may be worth and, due to this, no two cases are the same. The consequences of an injury or deterioration of an existing condition are likely to differ from claimant to claimant, which means that the compensation awarded to you may vary from somebody else who experienced the same injury or deterioration of an existing condition.

Your solicitor should go through each element of medical negligence compensation with you to include the elements of:-

The Issue of Liability in Claims for Medical Negligence in NHS Hospitals

The value of your claim is determined by a number of factors, such when the parties involved in the accident are in dispute over liability. While there are certainly many occasions when the medical team administering the treatment is 100 percent at fault, there are medical negligence claims that are not black and white. Other factors – including the claimant’s own actions – may have caused the injury, which leads us to the next question. How is liability determined when a claimant may have contributed to their injury or deterioration of an existing condition through their own negligence?

In a claim for hospital negligence, when the claimant is proven to have contributed to their own injuries through a disregard for their own welfare, this is known as contributory negligence. Regarding any claim for medical negligence in NHS hospitals, this could have occurred when the patient helped make the illness or injury caused by the negligence of the hospital worse by refusing to cooperate with doctors or nurses. It could also be failing to show up for appointments or refusing to take medication which could have helped heal the injury or cure the illness. The contributory negligence of the patient is then measured against that of the hospital staff and, if it is established that the claimant’s negligent actions were greater than that of the hospital, the claimant could fail in their case or at least lose a large percentage of their compensation settlement for hospital negligence.

Trauma suffered

Compensation is paid for injuries suffered due to a medical practitioner who fails to provide you with the duty of care to which you are entitled. Unless you can prove that it caused psychological problems for you, the injuries sustained will be much important than the incident itself. That said, your solicitor may attempt to highlight any trauma you suffered to aid your compensation claim for medical negligence in NHS hospitals.

Making a Prognosis

If the claimant suffers permanent injuries, or those it is believed will take many years to heal, they are more likely to receive a larger amount of compensation. The victim’s age is also taken into account – the younger someone is, the longer they are expected to have to deal with an injury. For example, should a 25 year old man lose a hand, it is anticipated they will have to live without that limb for 60 years or more. A man of 65 who suffers the same injury will have to live with the injury for maybe 20 years, possibly less. There will also be an increase in how much compensation is awarded if a doctor testifies that the claimant will require more specialist treatment in the future.

Quality of Life

The medical negligence claim for compensation will also take into account the affect your injury has on your quality of life and your ability to perform day-to-day activities. Pastimes which were part of your life prior to when medical negligence took place, and that you can no longer participate, in will also be incorporated into your medical negligence claim for compensation.

This “loss of amenity” can be temporary or permanent, but may be a significant part of your claim for medical negligence in NHS Hospitals. Please remember that no two negligence claims are identical; each individual claimant has a different quality and perception of life which can affect the ‘loss of amenity’ — even when the injuries sustained are similar. It is advised that you keep a diary — noting in it any regular activity which you are now unable to do in order to accurately determine your loss of amenity and to strengthen your compensation claim.

The Loss of Earning Power

One problem faced by solicitors is that of unhappy claimants who compare their case to a similar one they read about in the news, where the victim of medical negligence may have received £100,000 more than them. As this guide mentioned earlier, the circumstances surrounding a claim can vary greatly and the loss of earning power by a claimant is often one of the main reasons there are vast differences in the compensation amount awarded.

The claimant in this case may have spent longer out of work because of medical negligence, so were entitled to more compensation for loss of earnings. Or else, they may have a job that pays considerably better. In this instance, the seriousness of the injury is only relevant when it determines how long the claimant will spend out of work due to the injuries sustained.

‘No Win, No Fee Legal’ Representation

If you feel that you have a legitimate claim for hospital negligence, you should have your claim assessed by an experienced medical negligence solicitor at the first possible opportunity. You may be offered “No Win, No Fee” legal representation if your solicitor believes that you have a sufficiently strong claim for medical negligence.

It is very popular to pursue compensation for medical negligence in NHS hospitals through a “No Win, No Fee” conditional agreement; however, please be aware of the potential costs other than your solicitor´s legal fees you may be exposed to should you lose your medical negligence claim. It may be necessary for you to take out auxiliary insurance even though you may have car or household contents insurance which makes a provision for legal expenses. Your solicitor will provide you with details of your options.