NHS medical negligence claims

The NHS must provide an acceptable standard of healthcare and medical treatment to its patients. It  does not have to be ‘best practice’ but it must meet the baseline standards that are expected by the NHS, its regulators and medical professionals in each area of medical practice.

These standards are often reflected in guidelines by organisations such as:

• the National Institute for Health and Care Excellence (NICE);
• specialist professional associations, such as The Royal College of Obstetricians and Gynaecologists (RCOG) or The Royal College of General Practitioners (RCGP);  
• NHS organisations, such as NHS trusts;
• medical defence organisations, such as the Medical Defence Union (MDU);
• NHS Resolution, the NHS’s own defence organisation;
• the Department of Health and Social Care (DHSC).

Substandard healthcare, medical advice or treatment is known as medical negligence or clinical negligence. NHS negligence can describe mistakes by NHS employees, such as GPs, hospital doctors, other healthcare professionals and even administrative staff, as well as NHS system errors resulting in delays in treatment, misdiagnosis, incorrect treatment, mistakes in care provision and injury.

When a patient suffers serious harm as a result of negligent NHS care, the patient or their family (on behalf of an injured child or after fatal injury) can claim compensation for their injury, resulting disability and its financial consequences.

In most cases, the fact that hospital staff or a GP says sorry after something goes wrong is not the same as admitting liability. Saying sorry is a normal, caring response when something goes wrong, and NHS staff are expected to say sorry. Their obligation to say sorry comes from:

• their NHS employment contract;
• their professional regulators;
• the statutory Duty of Candour (regulated by the Care Quality Commission);
• guidance from NHS Resolution, the NHS defence organisation.

In a medical negligence claim, even after the NHS admits that the patient’s care was negligent, that is not enough to succeed with a compensation claim. A full admission of liability must also admit ‘causation’ (or that the negligent care caused the injury suffered or made it significantly worse) for the admission to mean that the NHS accepts the patient’s entitlement to compensation

For a successful claim, we must be able to prove that your caregiver did not meet the NHS standards and that the negligence was directly linked to your injury. We are experts at gathering the necessary evidence to investigate and prove NHS liability for each client’s claim.

This evidence can include:

• our client’s hospital and GP records
• our client’s private healthcare records
• the reports of any HSIB (Healthcare Safety Investigation Branch) or SUI (Serious Untoward Incident) investigation
• the records from any coroner’s inquest
• statements from our client and other witnesses to what happened

If our own investigations reveal clear evidence of negligence, we may ask NHS Resolution to admit liability, to save time and money and avoid further unnecessary investigations. If NHS Resolution admit full liability for our client’s injuries, then we:

• ask the court for a judgment on liability
• ask NHS Resolution (or, if necessary, apply to the court) for a substantial interim payment

If NHS Resolution refuse to admit liability, we instruct independent medical experts in the relevant area of medicine to examine the evidence and report on the standard of our client’s NHS care.

Where the claim is defended, this important step must take place before we can begin court proceedings and pursue the claim, if necessary, to trial.

The experts will base their opinions on:

• the medical records
• standard guidelines
• research studies published in peer-reviewed, medical professional journals, such as the BMJ
• their own clinical experience
• witness statements from our client and other witnesses, which, at a later stage in the case, will include statements of the defendant healthcare team and other evidence disclosed by NHS Resolution

We may need to obtain reports from more than one expert depending on the type of treatment, injury and resulting disability. We may need separate experts to report on:

• whether the care was negligent
• whether the negligent treatment caused our client’s injury
• the effect and future prognosis (expected outcome) of the injury, disability and its consequences

NHS Resolution is the NHS’s defence organisation. Their role is to reduce the number of NHS medical negligence compensation claims that are made by patients and to reduce the amount of compensation that is paid to patients who make claims.

NHS Resolution is notified directly by NHS hospitals and maternity services when a baby is born with hypoxic brain injury which could lead to a substantial birth injury claim, and also by MNSI after their maternity investigations into the baby’s birth injury, so that NHS Resolution can investigate what happened and take action to begin defending any potential claim.  As part of this process, known as the Early Notification or EN scheme, NHS Resolution and its lawyers sometimes contact the parents of babies who have suffered brain injury during childbirth when they know that the NHS maternity or neonatal care that the mother and baby received care could lead to a compensation claim.

If NHS Resolution or one of their solicitors has contacted you about your child’s injury and your NHS maternity care, we strongly recommend that you contact us immediately for free, confidential, independent, specialist legal advice to protect your child’s full entitlement to compensation.

Find out more about our advice for parents who are contacted by NHS Resolution’s Early Notification scheme on our specialist cerebral palsy website.

We depend on the NHS to help us through sickness and injury.  When negligent NHS care causes severe injury to a patient, it is natural for them to feel confused, betrayed and conflicted about their rights.

Political statements and media reporting often imply that it is morally wrong to claim compensation from the NHS. This inappropriate moral pressure on patients who have been harmed by NHS negligence is contrary to their legal rights, and ignores the fact that negligent NHS care caused the patient’s need for compensation to help them manage their new disability. The suggestion that injured patients are in any way responsible for the financial pressures and challenges that currently affect the NHS, unjustifiably increases the pain and worry that patients and families feel after medical mistakes cause devastating injury. Many people deal with these emotions and fear of criticism by struggling to meet their own or their severely disabled child’s needs alone. This causes huge stress to patients and their families who simply can’t cope with the difficulties of disabled life and its financial pressures, when these pressures could be eased significantly by the compensation they deserve.

If you think that your own or your child’s disability was caused by NHS negligence but are unsure if it is right for you to make a claim, we are here to help. Contact us to talk to one of our compassionate and experienced medical negligence solicitors, free and confidentially, with no obligation.

Just like any other organisation or individual which has a duty of care to others, the NHS has a legal responsibility to compensate the people it harms. Despite political statements designed to make patients feel guilty about claiming their right to compensation, it is inaccurate to suggest that compensation comes out of money needed for frontline NHS care. 

The NHS is not insured, but is funded from central government. NHS bodies contribute to a central fund to meet compensation payments. That fund is supplemented by direct government funding to ensure that the NHS liability to compensate seriously injured patients does not have any detrimental impact on day-to- day hospital budgets.

Unjustifiable claims against the NHS do not succeed. In every case where compensation is paid, the NHS has either formally accepted responsibility for the injury or accepts that there is a substantial risk the court would find the NHS responsible for the injury (or the court has made a judgment that the NHS is responsible for the injury). Our medical negligence solicitors take great care in our thorough scrutiny and investigation of the claims that we take on. We can therefore be confident that every case we present to NHS Resolution is justified, has been properly investigated and is likely to succeed. Our clients deserve nothing less from us, and our impressive track record speaks for itself.

We can’t guarantee that any individual claim will improve another patient’s care. However, the government, the NHS and its defence organisation, NHS Resolution, and many medical organisations agree that the NHS has to learn if it is to reduce avoidable harm. 

Initiatives, such as Getting It Right First Time (GIRFT), MBRRACE-UK, HSSIB, MNSI and NHS Resolution are working to help the NHS learn from its mistakes.

The NHS will only learn from its mistakes if it is accountable for them. Meanwhile, those who are negligently injured have a legal right to compensation.

No, the NHS should not change the care it gives to any patient or their family, simply because they are making a claim for compensation. Injured patients and their families should be able to continue receiving NHS care and be treated correctly by their doctors, whilst pursuing an NHS medical negligence claim, however, in our experience, over time the parents of children with cerebral palsy and severe neurological disability often find that the NHS is unable to meet their disabled child’s increasing needs. For many families, the only way to secure the level of help and support that their disabled child needs is by making a claim for compensation.