Suing The NHS

Published: 25th February 2009
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A five step guide to pursuing a medical negligence claim.

Medical negligence is notoriously difficult to prove. Your opinion as a layperson is going to come into direct conflict with the opinions of medical 'experts' and unless you have medical training yourself, the fight to prove someone has failed in their duty of care can be a long one. However, that does not mean that if you believe medical negligence has taken place during treatment that you are not entitled to fight for compensation and to have the negligence recognised. This fight can be vitally important as it could alter the way future patients are treated and help to force changes that could save lives.

Medical negligence (or clinical negligence as it is also known) can range from failure to diagnose a condition or making the wrong diagnosis to making a mistake during a procedure or operation. It can also include being given the wrong drug during treatment, failure to obtain consent to treatment or failing to warn a patient about the risks of a particular treatment. If you feel that you have been subject to medical negligence, there are five important steps you can take to redress the situation.

1. Confront the medical staff directly and if necessary file a formal complaint. This will set the wheels in motion and the use of a formal complaint procedure also provides a useful way of obtaining further information about the procedure or treatment. Any discussions should be noted and whenever possible, request that any responses to questions you have asked be put in writing.

2. Request that all medical records be handed over to you. This is a patient's right and can help to prove if vital information has not been taken into consideration by the medical staff when deciding on your course of treatment. You may have to pay a small charge for the medical notes.

3. Engage the services of a professional clinical or medical negligence solicitor. This is essential to take your claim to the next stage. Medical negligence solicitors are highly skilled in dealing with medical claims, which can be extremely complicated. They also have access to experts who will be able to give you second opinions on the original treatment regime.

4. Be aware that medical negligence claims have a time limitation in the UK of three years. You must commence your legal claim within three years from when the incident occurred or when you first realised you had suffered an injury. It is advisable to take specialist legal advice as soon as possible. In the case of children the three-year limit does not apply until their eighteenth birthday, so they have until they are twenty-one before commencing a legal claim. If the claim involves a patient who is not running their own affairs because of a mental disability, the three year rule does not apply until (and unless) they get over their disability. The simple way to discover whether you can make a claim is to ask one our solicitors by completing the enquiry form - follow the link at the bottom of this form.

5. For you to be successful in your legal claim you have to be able to prove both negligence and causation. Negligence is defined as the care you received falling below medically acceptable standards and causation is the breach of duty or negligence of the clinician, which directly results in an injury to you. As part of the initial investigations, your solicitor will require a supportive opinion from an independent medical expert on your case. They will base their opinion on your medical records, your statement about what has happened to you and any other documents supporting your case.

Following an assessment of your case your solicitor will be able to give you a more informed opinion about the level of compensation you might expect if your case is successful. They will take into account certain social security benefits you get because of your injury (such as Income Support) as this could affect how much compensation you will receive.

It can be a long and difficult road if you decide to sue the NHS for medical negligence, but by following each step carefully you give yourself a far better chance of succeeding and gaining the compensation you deserve. It could also mean that fundamental changes are implemented in the way future patients are treated.

We deal in a range of claims, including medical negligence and compensation.

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