Suing the NHS (How to Claim for Negligence)
If something went wrong during your NHS treatment, and you have suffered injury or harm as a result, you may have a claim for compensation.
Medical negligence – sometimes known as clinical negligence – occurs when a health professional breaches their duty of care to a patient, leading to damage or injury. Medical negligence can include a broad range of issues such as:
- Being prescribed or administered the wrong drug as part of your treatment.
- A mistake in an operation or other type of procedure.
- A diagnosis that was missed or misdiagnosed.
- Treatment being carried out without your consent.
- Treatment being carried out without being warned about the potential risks involved.
Do you have a claim?
To establish if you have a claim, you need to show that:
- a doctor, nurse or other health professional in charge of your diagnosis or treatment were negligent in not providing the standard of care required in your particular situation. For example, they might have made an error that led to a misdiagnosis or prescribed or administered the incorrect medication; and
- you were injured or suffered harm due to their negligence in their care.
Proving that the healthcare professional’s negligence was a direct cause of injury and damage can be difficult.
What injuries can you claim for?
If you prove that an injury or loss was a direct result of medical negligence, then you may be able to move forward with suing the NHS. Individuals usually claim for multiple heads:
- Payment for any extra treatment or medication that is needed.
- Compensation for pain and suffering caused by the mistreatment.
- Any loss of earnings incurred.
- Compensation if you can no longer continue hobbies or pastimes.
- Payment for any home adaptations, specialist equipment and care.
- Compensation for psychological damage caused by the negligence.
The first step in making a claim will be instructing a solicitor who specialises in medical negligence cases, and specifically with experience of the type of injury you have suffered.
Time limits when suing the NHS
It’s important to note that there is a time limit for making your claim.
The Limitation Act 1980 states that a claim needs to be made within three years of the negligence taking place or of when you became aware of the injury.
For child victims, this three-year period does not begin until their 18th birthday, unless their parents of guardians have already claimed while still a minor.
There is no time limit for victims of negligence deemed to be lacking mental capacity.
What is the process for suing the NHS?
If your solicitor advises you have a valid claim, they will start by bringing together all of the required elements to support your case.
You should provide all evidence you have collated to; your records contemporaneous diary of treatment.
To corroborate your medical injuries and that they are a result of the negligence, you will need supporting opinion experts that specialise in the field of your injury. This will require you to attend medical examinations from independent health experts.
You should also provide details and receipts of expenses incurred as a result of the injuries. This will help to determine how much compensation you could claim.
The next step is to notify the defendant – ie the NHSLA, which is the body charged with resolving claims against the NHS. The defendant then has a limited period in which to respond to the allegations.
Depending on the defendant’s response, a period of negotiation may follow to agree a settlement, if for example liability is admitted. Where the defendant disputes liability or causation (i.e. they deny that the negligence was the direct cause of the injury being complained of), it may be that no settlement is put forward and the case proceeds to court.
Will my claim go to court?
The majority of claims are settled out of court. However, if proceedings have been issued and you are not prepared to settle for any of the defendant’s offers, your claim will be heard before the court for a judge to decide.
You will have to take the witness stand and talk through your witness statement. You will also be cross-examined by the defendant. Other witness you have included in your claim may also have to attend to give their evidence, such as the medical experts.
How long does it take to sue the NHS?
As each case is completely different, it can be difficult to give an exact timeframe for suing the NHS. If the NHS admits liability, the claim could be settled within 18 months. Complex cases can take between 18 months to 3 years to conclude.
Suing the NHS following the death of a loved one
You may be able to sue the NHS if a loved one has passed away as a result of medical negligence.
Whether you are the surviving spouse, civil partner, son, daughter, sister or brother or the executor of the deceased’s will.
The level of compensation is considered under a number of areas including:
- Pain and suffering of the deceased prior to their death
- Loss of dependency – to help make provision for future needs, including dependency on income as well as dependency for services eg care and assistance.
- Trauma – in limited circumstances this may be available where sufficient proximity between the relative and the negligence can be established.
- Bereavement damages – a capped amount available in certain circumstances.
- Funeral expenses
An inquest and post-mortem might be required to establish whether the death was caused by medical negligence – your lawyer will help you through this inquest process.
Why take legal advice
Suing the NHS is a highly complex process. Taking professional legal advice will be critical for an initial assessment of your claim, and for guidance throughout what can be a protracted and demanding process.