If you have suffered a loss, an injury or the deterioration of an existing condition due to avoidable medical negligence in an NHS hospital, you may be able to claim compensation for NHS hospital negligence. Not all injuries that are sustained in a hospital will result in a successful claim for NHS hospital medical negligence, and therefore we have compiled this article to provide information that may be of value to you prior to speaking with a solicitor.
It is always advantageous to speak with a solicitor at the first practical moment to discuss the treatment you underwent, the circumstances of your injuries, the consequences they have had on your quality of life and – if NHS medical negligence claims are possible – to find out how a solicitor can help you to successfully claim compensation for medical negligence in an NHS hospital when you may still be suffering from a significant physical or emotional trauma.
Qualifying for Compensation for Medical Negligence in an NHS Hospital
In order to qualify for compensation for medical negligence in an NHS hospital, you must have sustained a loss, an injury or the deterioration of an existing condition due to the negligence of somebody who owed you a ‘duty of care’. There are many examples in which a ‘duty of care’ can be breached through carelessness which can result in a claim for NHS hospital medical negligence. For example:-
- a failure to diagnose an injury or illness
- a failure to treat a condition in good time
- a surgical error during a medical procedure
- the development of an infection due to poor hygiene
- incorrect medicines prescribed or administered
Provided that it can be determined that a person (or persons) with responsibility for your health and safety failed to prevent a foreseeable injury from occurring ‘in the circumstances and at the time’, you should qualify for compensation for medical negligence in an NHS hospital.
Establishing Liability in NHS Medical Negligence Claims
In order to establish liability in NHS medical negligence claims, you should first discuss with a solicitor the circumstances of how your injury was sustained. Depending on the nature of the loss, injury or deterioration, your solicitor will advise you on what evidence of negligence needs to be compiled and any formalities which should be completed – such as sending a letter of complaint to the NHS Trust.
Your solicitor will write to all the parties who may have been involved in the negligent treatment you received and obtain any relevant medical notes – without making any accusations of NHS hospital medical negligence until such time as the notes have been reviewed by a medical expert.
The reason for writing to all potentially negligent parties is that, in many NHS medical negligence claims, it may not have been the medical practitioner that treated you who was negligent and liable for your injury. Mistakes had been made by any of the nursing staff, laboratory technicians or hospital administrators, and liability for your injury could be assigned to any one (or more) of a number of NHS employees.
Making a Claim for NHS Hospital Medical Negligence
Once you – or your solicitor on your behalf – have collected sufficient evidence of medical negligence, your solicitor will write a ‘Letter of Claim’ to the hospital or NHS Trust advising them that you are making a claim for NHS hospital medical negligence and support the letter with the evidence that has been compiled and your medical notes which identify the injury for which you are claiming.
No mention of how much compensation for medical negligence in an NHS hospital you may be entitled to is made at this point – indeed the full impact of your injury may not yet be known. Only when liability is accepted, and your full entitlement to compensation for NHS hospital negligence has been calculated, will your solicitor enter into negotiations with the hospital´s insurance company to settle your claim for NHS hospital medical negligence.
Calculating Compensation for NHS Hospital Negligence
How much compensation for NHS hospital negligence you may be entitled to is calculated according to the nature and severity of your injury, the consequences that your injury is likely to have on your future health and the impact of your injury on your quality of life. Amounts of compensation taken from the Judicial College Guidelines for the Assessment of General Damages will be adjusted to consider your state of health prior to undergoing negligent NHS treatment, your age and – depending on the nature of the injury – your sex.
If your injury due to NHS hospital medical negligence prevents you from completing everyday domestic tasks, taking part in leisure pursuits or social events that would normally be in your regular routine, you can also include your ‘loss of amenity’ in a claim for compensation for NHS hospital negligence along with compensation for any diagnosed psychological trauma you may have suffered. Any expenses you have encountered or any income you have been deprived of which can be attributed to your injuries can also be recovered in NHS medical negligence claims.
NHS Medical Negligence Claims for Children
If your child has sustained an injury due to avoidable medical negligence in an NHS hospital, the procedures for making a claim for compensation are similar to the above, but with a few significant changes.
Children are not allowed to make a claim for NHS hospital medical negligence or engage the services of a solicitor until they reach eighteen years of age. Therefore a parent or legal guardian acting as a ‘Litigation Friend’ has to make a claim for compensation for NHS hospital negligence on the child´s behalf. The ‘Litigation Friend’ cannot be a person who has a conflict of interest – such as a mother who operated on her daughter – must be approved by a court and must be prepared to accept the financial consequences if a claim for NHS hospital medical negligence is unsuccessful.
All settlements of children´s NHS medical negligence claims, once agreed, must first be approved by a court before the claim for NHS hospital medical negligence is concluded, and are then paid into court funds where they remain until the child becomes a legal adult. Compensation settlements held by the court can be accessed if the child needs funds for medical treatment, nursing care or educational support, or if the ‘Litigation Friend’ has any expenses to recover.
Time Limits in which to Claim Compensation for NHS Hospital Medical Negligence
With the exception of NHS medical negligence claims for children, the time limits in which to claim for compensation for NHS hospital medical negligence are set by the Limitations Act 1980. The ‘Statute of Limitations’ allows three years from the date a loss, an injury or the deterioration of an existing condition due to medical negligence in an NHS hospital is diagnosed – not necessarily the date on which negligent action – or lack of action – occurred.
For example, if negligent medical treatment resulted in an injury which was not identified for three months, the date on which the loss, injury or avoidable deterioration of an existing condition was diagnosed and attributed to the negligent treatment becomes the ‘Date of Knowledge’ from when the three-year claims limit starts. A claim for compensation for NHS hospital negligence does not have to be resolved within this period, as the full consequences of an injury sustained due to medical negligence in an NHS hospital may not always be apparent within the three-year limitation period.
Unsolicited Offers of Compensation for NHS Hospital Negligence
It may be the case – sometimes even before you have considered making a claim for NHS hospital medical negligence – that you are approached directly by the hospital´s insurance company with an unsolicited offer of compensation for NHS hospital negligence. Approaches such as these – often referred to as ‘Third Party Capture’ – are aimed at settling NHS medical negligence claims for the lowest amount possible in order to save the insurance company money.
If you receive an unsolicited offer of compensation for medical negligence in an NHS hospital you should refer it immediately to your solicitor. Should you inadvertently agree to the offer of compensation for NHS hospital negligence, and it proves to be insufficient to support your family while you are unable to work or pay for the care you need while recovering from your injuries, you cannot make further NHS medical negligence claims to recover the shortfall.
If short-term finances are a problem for you, and you are tempted to accept the settlement being offered – even though it may be insufficient for your long-term needs – speak with your solicitor. Even though the insurance company´s unsolicited approach cannot be presented in court as evidence of their policyholder´s negligence, it may be possible for your solicitor to organise interim payments of compensation until such time as your claim for NHS hospital medical negligence is resolved.
Further Advice about Medical Negligence in an NHS Hospital
If you believe you have sustained a loss, an injury or the deterioration of an existing condition due to medical negligence in an NHS hospital, it will be beneficial to your claim is you speak with a solicitor at the first possible opportunity. Most solicitors offer a free and confidential telephone advice service which you can call to establish whether you have a claim for NHS hospital medical negligence which is worth your while to pursue.
Whatever the circumstances of your injury, a solicitor will understand many of the concerns you may have about making NHS medical negligence claims and – although no amount of compensation will be able to reverse the trauma you may have recently experienced – your solicitor will help you to obtain a fair and appropriate settlement of compensation for NHS hospital medical negligence that will provide the support and care you are entitled to because of somebody else´s lack of care.