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NHS Hospital Medical Negligence Compensation

Though relatively commonplace, NHS hospital medical negligence compensation claims are among the most difficult to execute successfully. 10% of all patients who have been cared for by the National Health Service in the UK are affected by medical negligence according to figures compiled by the Public Accounts Committee – the equivalent of one million patients per year.

A person’s entitlement to pursue compensation for negligence when the NHS is involved is not solely reliant on whether an injury has been sustained. While it is possible that more accurately followed safety procedures and closer supervision may have stopped an injury from occurring, it is also possible that an injury could not have been prevented.

You may be eligible to claim against the NHS if you or a family member has been inflicted with an injury which could have been prevented, and was sustained due to the poor professional performance of a medical practitioner who failed in a duty of care they had towards you or your loved one.

The following article aims to provide information and advice to potential claimants about pursuing a personal injury claim against the National Health Service. It should not be used as a substitute for legal advice. A person considering pursuing compensation from the NHS should peak with a solicitor who specialises in personal injury claims at the first available opportunity.

Liability and NHS Hospital Medical Negligence Compensation

As is the case in any pursuit of compensation, an NHS hospital medical negligence compensation claim will only succeed if you are able to prove that someone with a duty of care toward you allowed you to come to harm through their actions, or as the case may be, inactions. All medical staff – doctors, nurses and hospital administrators – have a duty of care toward their patients, and are obligated to provide them with the highest quality treatment. If they fail in their duty of care by injuring you or causing a further deterioration in your condition, you are entitled to pursue a personal injury claim against the liable party. Judgements are made on the “balance of probability”, however.

How to Prove that Medical Negligence Was a Factor

It can be very difficult to prove that a medical practitioner was at fault for your injuries and NHS hospital medical negligence compensation can only be awarded if, in all probability, the treatment you received was negligent in nature and was the direct cause of an unavoidable injury. Sometimes claimants seeking to pursue compensation for negligence will have to call upon the testimony of independent medical professionals to verify their claims. Here are a few examples:-

  • A delay in making a diagnosis or an incorrect diagnosis
  • Evidence that hospital staff did not act fast enough after being given test results
  • Unacceptable performance in an operation or procedure
  • Mistakes in distributing treatment and medications
  • Inadequate follow-up procedure
  • Not disclosing all of the risks involved in a procedure or treatment before undertaking it

Many claims against the NHS are settled before a claim reaches court, however if the case does make it into a courtroom a judge will decide whether or not to award you compensation for your personal injury claim based on what a competent medical professional would have done in the same situation as the one who you are accusing of negligence. In other words, even if it can be proven that a medical professional who you are taking a personal injury claim against was directly responsible for your injuries, they may not be found to have been negligent.

Date of Knowledge and Statute of Limitations Act

In order to claim NHS hospital medical negligence compensation you must take action within three-years of the date of knowledge – the date on which the injury or a deterioration condition was discovered, not sustained. The time limit is imposed under the Statute of Limitations Act 1990 and applies to most personal injury claims, with childrens claims and claims for accidents at sea or in the air the notable exceptions.

Parents/guardians looking to pursue compensation for negligence where a child is involved have two options – wait until the child is 18 years of age and allow them to proceed with the claim on their own; or have a parent/guardian take a claim for compensation on their behalf. An adult acting on behalf of a child is known as a Litigation Friend, and must accept all financial liability for the claim, as well as not have a conflict of interest in the case – be the person responsible for the accident for example.

The time limit also applies to the date on which autopsies took place, where a claim against the NHS for the death of a loved one is concerned.

What Do I Do if Several Parties are at Fault?

When making an NHS hospital medical negligence compensation claim it is possible that more than one medical professional is responsible for your injuries. In this case you can pursue compensation for negligence against all of the persons responsible, with them deciding what percentage of liability they will shoulder between them.

In order to inform the medical professionals that action is being taken against them, your solicitor will send a Letter of Claim to each of them. After the letters have been dispatched the negligent parties have 21 days in which to acknowledge the action, and a further 90 days in which to decide whether or not to accept liability.

Determining the Value of Medical Negligence Personal Injury Claim

The value of NHS hospital medical negligence compensation is calculated by taking a number of factors into account and, as a result, your injury compensation claim may be worth significantly more or less than someone whose claims appears to be similar to your own. All of the different elements of a potential settlement will be explained to you by your solicitor. Among the variables taken into account when evaluating how much compensation you are entitled to are the following:-

Pursue Compensation for Negligence – Liability

A number of factors are considered when deciding how much to award for NHS hospital medical negligence compensation claims. Persons looking to pursue compensation for negligence may come across a scenario where two or more negligent medical professionals are responsible for causing your injuries. Although medical negligence claims are not always straightforward, there are occasions when several people are clearly at fault for causing your injuries and there can be a multitude of reasons that the injury was caused, including sometimes, when the claimant is partly to blame. If this is the case a number of questions have to be asked: how is a percentage of liability determined? Should a claimant forfeit their right to compensation just because they contributed their own injuries?

When a claimant is found to have in some way contributed to their own injuries it is known as contributory negligence. An example of when contributory negligence would factor in a medical negligence personal injury claim would be if a patient exacerbated an injury or allowed an illness to further deteriorate by not properly cooperating with their doctor. Failing to show up to appointments, not taking prescribed medication or refusing to undertake treatments that could improve your condition could all constitute contributory negligence.

When contributory negligence is found to have played a part in a claim against the NHS, the responsibility for the injury will be split between the patient and the medical professional(s) responsible. If the percentage of blame placed on the defendant us larger than that placed on the medical professional(s), the cause may be unsuccessful or a large percentage of the overall award may be lost.

What if Emotional Trauma is Present?

Awards for NHS hospital medical negligence compensation claims are paid out primarily because of the suffering inflicted by the injury, and not necessarily for the injury itself – unless it can be proven that the injury led to psychological trauma. Even so, your solicitor will make a point of highlighting the pain and suffering caused as result of the initial injury being inflicted, in the hope of gaining sympathy and boosting your claim against the NHS.

Special Damages in Relation to the Type of Injury

Usually, where NHS hospital medical negligence claims are concerned, the fees payable to specialists for the treatment of injuries sustained as a result of your injury can be recovered in full. While some injuries can cause more pain and suffering than others, the value of a personal injury claim depends more on the presence of scarring, the seriousness of the injury and the length of time it will take to make a full recovery, rather than the discomfort.

Permanent or Long-Term Injuries

The value of a personal injury claim taken for NHS hospital medical negligence compensation can be influenced by the an injury’s degree of permanency – if the injury sustained will be with the victim for life or if it will take many years to heal, the claimant will be awarded a greater sum of compensation to reflect any future suffering. The age of the victim can influence the amount of compensation an accident victim who takes a claim against the NHS – if an accident victim is in their twenties they will have to deal with an injury for a longer period of time than an person in their sixties who sustained the same injury, and thus they are more likely to be awarded a greater amount of compensation. For example, if a 25-year-old man loses a hand in an industrial accident, he may have to live with the injury for 60 years or more, whereas a 65-year-old man who also loses a hand may only have to do without it for 20 years. Claimants who pursue compensation for negligence should note that if they can get a doctor to testify that an injury may require future treatment in future, more compensation may be awarded.

Loss of Amenity

An award for NHS hospital medical negligence compensation may also include compensation for any loss of amenity – a claimant’s inability to carry out day-to-day tasks because of the nature of their injury. If an injury forces you to stop engaging in pastimes or hobbies you enjoyed before the accident, compensation for your inconvenience can be awarded as part of your claim against the NHS.

Loss of amenity can be either temporary or for life, and could account for a large percentage of you overall personal injury claim award. The loss of amenity factor can be the difference in compensation between two claimants with identical injuries – each individual has a different quality and perception of life, and a claimant who is more active, enjoys sports and outdoor activities is more likely to be awarded a greater amount of compensation than one who spends most their time in front of the television. Claimants who pursue compensation for negligence should keep a diary of their life after the accident in order to document the effect their loss of amenity has had on their lives, noting instances in which their injury has prevented them from engaging in hobbies and activities.

Inability to Work

A claim against the NHS can also be influenced by a claimant’s loss of earning power. One issue solicitors whose clients want to pursue compensation for negligence often face is that media reports can sometimes give claimants the impression that they are entitled to claim more than they actually are. Media outlets often carry reports of compensation claimants who are awarded large sums, possibly £100,000 or more for an injury.

What the claimants fail to realise is that there may be another reason other than the nature of the injury sustained that the person was awarded such a large amount of compensation from a seemingly similar personal injury claim. The person may have been out of work for longer, for example, or may have simply been a higher earner. In this instance, the seriousness of the injury is only a factor when it determines how long the claimant spends absent from work.

The Offer of a No Win, No Fee Arrangement in Medical Negligence

If you believe that you have strong evidence to support an NHS hospital medical negligence claim, you should have your claim assessed by a personal injury claims solicitor at the first available opportunity.

If your solicitor feels that you have strong chance of succeeding in your claim against the NHS they may offer to take the case on a No Win No Fee arrangement. It should be noted that although you will not be responsible for your solicitor’s legal fees if your claim is unsuccessful under a No Win No Fee arrangement, you my still incur expenses such as any expenses that your solicitor might charge for, as well as the legal fees of the defendant’s solicitor.