On the whole, NHS healthcare is generally very good and most people don’t experience any difficulties. But occasionally things can go wrong.
It is important that we pay compensation quickly where this is due, however it’s important to understand that making a claim can be an expensive, stressful and potentially a lengthy process. Unfortunately is it likely that during the process of making a claim you will have to go over what happened to you several times, which can be very upsetting and traumatic.
When considering the reason for your claim, it is important to note that the process of taking legal action is only about claiming compensation, the court can’t discipline healthcare practitioners, force a hospital or individual healthcare practitioner to change how they work or make a healthcare practitioner say sorry.
Before making a claim it is worth considering using the NHS complaints procedure in order to find out more about what happened. This may help you to make a more informed decision if you are unsure about what to do.
Who can claim and what do I need to prove in order to make a claim?
If the treatment you received fell below a minimum standard of competence and you suffered an injury as a result and it is more likely than not that the injury could have been avoided or less severe with proper treatment then you may be able to take legal action for compensation.
If you’re the next of kin of someone who has died because of negligent clinical care or who can’t take legal action themselves because they don’t have capacity, you may be able to take legal action for compensation on their behalf.
To receive compensation, you will need to show both ‘breach of duty of care’ and ‘causation’ has taken place.
What is breach of duty of care?
The health practitioner must have acted in a way which fell short of acceptable professional standards. Known as the ‘Bolam’ principle, this tests whether the actions of the health professional in question could be supported by a ‘responsible body of clinical opinion’. This test is not about what ‘could have been done’ – that other health professionals might have done something differently, but whether it ‘should have been done’ – would a ‘responsible body’ of health professionals support the action taken?
There is also a further test known as ‘Bolitho’. This means that the court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis.
What is causation?
The harm suffered must be shown, on the balance of probabilities, to be directly linked with the failure of the health professional to meet appropriate standards. If, for example, there was a good chance that the harm would have taken place even if the health professional had acted differently, then a claim is unlikely to succeed.
You will need to establish both a breach of duty of care and causation to be entitled to receive compensation. Compensation is aimed at putting you back, as close as possible, to the position you were in prior to the negligent care.
Compensation claims for personal injury are subject to a ‘limitation period’ of three years. A claimant must issue their claim at court within three years of the alleged negligence taking place or within three years of becoming aware that something went wrong. Individuals that lack ‘capacity’ (under 18 years of age or without the mental ability to make the necessary decisions) are not subject to a limitation period.
Letter of claim
If you do not have legal representation and you plan on representing yourself in court as a litigant in person, you will need to submit what is called a ‘letter of claim’ to the NHS Trust that was responsible for your care.
This should include:
- your full name and address (or the name of the injured party);
- date of birth;
- National Insurance number;
- confirmation of where the treatment was undertaken;
- the names of the clinicians involved; and
- the dates of treatment.
Your letter should clearly state the precise nature of the allegations of breach of duty being made, against which clinician and on what date. And clearly state the nature and extent of the symptoms caused by the breach in duty. Finally, you should say what level of compensation you are seeking.
General damages and special damages
Depending on the nature of your claim and the consequences of the injury sustained you may be entitled to claim for compensation for:
- general damages that includes compensation for both the pain suffered and loss of amenity you have incurred; and
- special damages that includes any additional losses you may have incurred such as loss of earnings, additional care requirements, medical expenses, funeral expenses (in cases of bereavement) and other expenditure. Where appropriate a claim for special damages will need to be supported by appropriate receipts.
The compensation awarded for general damages takes into account the nature and extent of the injury sustained and the likely prognosis for resolution of any such pain and suffering experienced. This will also be based on guidelines provided by the Judicial Studies Board guidelines and previous awards by the courts in similar cases. To accurately assess what you are entitled to receive, it is likely that you will need to undergo an examination by an appropriate expert instructed either by you, on your behalf or by the defendant NHS trust. This is known as a condition and prognosis report.
Reporting of claims to the Department for Work and Pensions
All claims for personal injury are required to be reported to the Compensation Recovery Unit (CRU) at the Department for Works and Pensions. This is so that any compensation you receive takes into account (deducts) any government awarded benefits you have received as a result of the injury you have sustained. This is why your date of birth, address and National Insurance number are required.
Claims for clinical negligence compensation are often complex and may require expert evidence, particularly in respect to causation. We strongly recommend that you consider seeking independent legal advice to assist you in pursuing your claim.
Useful links for claimants
The following organisations are able to help you locate a legal firm in your area with appropriate experience in dealing with these types of claim:
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