Sometimes, our clients tell us that they feel uncomfortable about suing the NHS because they recognise that it does a lot of brilliant work, or because they don’t want an individual doctor or nurse to get into trouble. The pandemic has understandably further elevated public opinion of the NHS to a higher, exalted status.
In fact, making a legal claim is not about punishing the NHS or an individual clinician, it is about making sure that people who have suffered an injury or lost a loved one, as the result of substandard medical treatment or gaps in staffing levels of doctors and nurses, are compensated appropriately. People would not think twice about making a claim if injured on a Council play park or by a negligent driver and the situation is no different here.
Why make a medical negligence claim?
The purpose of making a claim for compensation is ‘to put the injured person back in the position they would have been in had the negligence not occurred’. For the claim to be successful, it will be necessary to prove that there was such unreasonable medical care/treatment that an injury or death was foreseeably caused.
Of course, no amount of money can turn back the clock, but it can make a big difference to improving an injured person’s quality of life, especially if they are disabled so cannot continue with their job, and to ensure that they receive the often-expensive care and support they need in the future. When someone has died as the result of medical negligence, compensation can help their loved ones to manage financially, including funding the funeral.
Will making a claim affect my ongoing or future treatment?
Bringing a medical negligence claim or making a complaint regarding NHS treatment does not affect your right to receive NHS treatment. Doctors and nurses have a legal duty to provide the same level of care and treatment regardless of whether or not you are bringing a claim against treatment they provided to you in the past. Of course, you may well feel uncomfortable being treated by a clinician who has previously been negligent in their treatment of you and in respect of which you are bringing a claim. It is not unreasonable, therefore, to request that your treatment be managed by another clinician.
Similarly, GP practices are not permitted to refuse to treat individuals who have previously complained about treatment they have received at a practice. Complaints are not stored with medical records and so if a patient chooses to register at a different GP practice, no record of a previous complaints regarding treatment will be passed on.
In short, you should not be treated any differently because you are bringing a legal claim and this should not influence your decision to bring a claim. If you do believe at any stage that you are being treated differently because of your complaint or claim, it is a serious matter, and you should make a formal complaint about it and inform your solicitor.
Learning From Mistakes
Our clients often say to us that by making a claim, they hope it will prevent the same or similar mistakes being made again in the future.
Whilst the NHS has systems in place to reduce risks to patients and to help prevent medical accidents, mistakes can and do happen. Sometimes it is obvious that something has gone wrong at the time it happens, but it is not always so clear cut. When it is recognised that a medical mistake has occurred and has caused injury, the NHS has a duty of candour. This means it has a legal obligation to tell the patient what has gone wrong and how it has affected the patient.
In some circumstances, the NHS will launch its own ‘Serious Untoward Event Investigation’ under NHS England’s Serious Incident Framework (Wales and Scotland have their own processes and bodies). Occasionally, however, the NHS is unaware that there has been any negligence until a patient later makes a complaint about their treatment or otherwise pursues a legal claim. In such circumstances, if a claim is not brought then the opportunity for the NHS to investigate and learn from the events in question does not arise.
NHS Resolution is “an arms-length body of the Department of Health and Social Care”. It deals with claims for compensation made against the NHS and shares information and learning across the NHS to improve patient care and reduce risk. NHS Trusts have to keep records regarding the complaints they receive, and the claims made against them, and this information is shared with NHS Resolution.
NHS Resolution monitors the number and nature of clinical incidents and claims arising so that high risk areas are identified, and measures can be taken to improve care and treatment. For example the recent news about various hospital scandals which ought to have been picked up sooner and saved unnecessary suffering and deaths due to mismanagement of NHS resources, such as the Mid Staffs, Alder Hey organs and Bristol NHS heart scandals.
In most cases, individual doctors and nurses will not be penalised for making a one-off mistake. However, some errors are so serious that they bring into question an individual’s fitness to practice. When this is the case a report can be made to the relevant regulatory body, for example the General Medical Council or the Nursing and Midwifery Council, who will then investigate and make a decision.
Improving Patient Safety
NHS England says “Patient safety is of the highest importance…” In August 2022, it published its new Patient Safety Incident Response Framework which is now being rolled out to replace the pre-existing Serious Incident Framework. The Patient Safety Incident Framework is expected to be fully adopted and in action by NHS organizations by autumn 2023.
Is it ethical to make a claim against the NHS?
We take the view that if you have suffered an injury as the result substandard and unreasonable NHS medical treatment it is entirely ethical and appropriate to sue the NHS seeking compensation, just like it would be if making a claim against a private healthcare provider who damaged your health by making a medical mistake.
It would be a grave injustice to be injured as the result of substandard medical treatment and for there to be no recourse to compensation. Worse, without reporting these catastrophic mistakes, they are bound to be repeated, thereby ruining others’ lives.
It is important also, to consider the scale of the NHS compared to the number of claims being made each year when making your decision to make a complaint and claim compensation. For instance, of the £190 billion NHS budget, around 7 per cent funded claims, which includes the NHS solicitors’ costs too.
RHL Solicitors’s specialist medical negligence solicitors act for the victims or the Estates of the deceased, conducting thorough and rigorous clinical negligence investigations with the intention of establishing liability and recovering compensation. The expert reports we disclose to the Defendant during the claim process can also help to make a difference and to improve future care. If you believe that you are victim of medical negligence, contact us on 0344 7768328 to explore a possible claim for compensation on a No Win No Fee Agreement.