The NHS has a responsibility to provide safe medical care to its patients. The NHS as a whole, and the individual health professionals who work for it, must provide care that is of an acceptable standard. Where a patient is seriously injured by negligent NHS care, they are entitled to compensation for their injury and its financial consequences. The NHS has a legal responsibility to compensate those it harms when NHS treatment falls below acceptable standards of care.
What is NHS negligence?
The law says that medical treatment is negligent if no responsible body of medical opinion would regard it as acceptable. This means that NHS treatment must be of a reasonable standard. It does not have to be ‘best practice’.
Guidelines set out the standard of care that is expected of doctors and other medical professionals in many areas of medical practice. These guidelines are published by various organisations, including:
- the National Institute for Health and Care Excellence (NICE)
- the professional associations for each specialist area, such as The Royal College of Obstetricians and Gynaecologists (RCOG), The Royal College of General Practitioners (RCGP) or the Royal College of Midwives
- NHS organisations, such as NHS Trusts
- medical defence organisations which represent doctors, such as the Medical Defence Union or Medical Protection Society;
- NHS Resolution, the NHS’s own defence organisation
- the Department of Health and Social Care (DHSC)
How is medical negligence proved?
Medical negligence cases are complex. These cases should only be handled by specialist solicitors who understand the legal, medical and procedural requirements for proving a claim successfully.
Boyes Turner are recognised as experts in high value clinical negligence claims by:
- Chambers Directory
- Legal 500
- APIL (Association of Personal Injury Lawyers)
- The Law Society
- NHS Resolution
- top clinical negligence barristers and medical experts
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
The NHS has said sorry for my injury. Is that an admission of liability?
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 clinical 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 entitling the patient to compensation must also admit that the negligent care caused the injury suffered or made it significantly worse.
NHS Resolution have admitted liability – do I need my own solicitor to handle my child’s cerebral palsy claim?
The NHS is defended in medical negligence cases by NHS Resolution. NHS Resolution also appoints its own solicitors to represent the NHS in negligence claims. Occasionally, NHS Resolution and its lawyers contact the parents of babies who have suffered brain injury during childbirth. They do this when they know that NHS maternity care could lead to a compensation claim.
If NHS Resolution or one of their solicitors has contacted you and has admitted that your maternity care was handled negligently, it is vital that you immediately seek independent, specialist legal advice.
Boyes Turner are one of the few firms who have experience of handling cerebral palsy claims under NHS Resolution’s Early Intervention Scheme. We have found that even when NHS Resolution admits to the brain-injured child’s parents that their maternity care was negligent, they do not always accept that this caused injury. The sooner the parent comes to us after a birth injury or contact from NHS Resolution, the sooner we can force the NHS to accept full liability. Then we can immediately begin meeting the child’s needs with a substantial interim payment
Will my NHS negligence claim need to go to court?
In most cases where our own investigations and our experts are supportive of our client’s claim, we achieve out of court settlement before the case reaches trial. We can’t guarantee that any particular claim will settle without the need for a contested trial, but we take great care in investigating and preparing each claim that we take on. We do not take on a client’s case unless we believe that the claim is likely to succeed.
From time to time, a case can only be concluded by a court hearing, where, for example:
- NHS Resolution decides to take a case to trial to test the courts’ approach to a particular type of claim
- Where there is strong disagreement between each side’s medical experts about whether the standard of healthcare was negligent or caused the injury, and the court must decide
- Where there is a factual disagreement about what happened, which must be resolved by the court before liability can be established
Where a client’s case must be decided at a court hearing, our caring and highly experienced solicitors and barristers ensure that our clients understand what to expect and are supported throughout the process.
Getting help after medical negligence causes serious injury - is it wrong to sue the NHS?
We depend on the NHS to help us through sickness and injury. When negligent NHS care causes or worsens a patient’s injury, it is natural for them to feel confused, betrayed and conflicted about their rights. Political statements often imply that it is morally wrong to claim compensation from the NHS. This unfairly ignores the fact that negligent NHS care caused the patient’s need for compensation to help them cope with their new disability. This misunderstanding 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
Will my claim make it worse for other NHS patients?
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. The NHS is not insured, but it receives funding from central government, with provision to pay for claims arising from negligently caused harm.
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. Unjustifiable claims against the NHS do not succeed. In every case where compensation is paid, the NHS accepts (or the court has examined the evidence and found) that the injury was caused by negligent care.
At Boyes Turner, we 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.
Will my claim stop the same thing from happening to others?
We can’t guarantee that any individual claim will improve another patient’s care. However, the government, the NHS and many medical organisations agree that the NHS has to learn if it is to reduce avoidable harm. Initiatives such as the Royal College of Obstetricians and Gynaecologists’ (RCOG’s) Each Baby Counts programme and Getting It Right First Time (GIRFT) 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.
Will the NHS refuse to treat me/my child if we bring a claim?
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. In our experience, however, 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 these families, the only way to obtain financial help to meet their child’s needs is by making a claim for compensation. For many, this can be a tough decision, but our clients often tell us that they felt it was the only way they could properly provide for their severely disabled child.