Claiming against the NHS
Medical professionals owe their patients a ‘duty of care’, which means that they are responsible for providing an acceptable level of care to the patient. Medical negligence is a professional negligence by act or omission on the part of a healthcare provider whereby they have breached their duty of care towards the patient and their actions have caused injury or death.
Medical negligence claims may arise if there has been a delay in diagnosis, if surgery has been badly performed, or if inappropriate treatment has been provided or prescribed.
In these (and other) circumstances, individuals may wish to make a claim against an NHS Trust or a GP for compensation. If you are thinking of doing so, you may wish to consult a specialist solicitor first to discuss your options.
For lower value claims of a straightforward nature the NHS redress scheme is an available option. This scheme covers liabilities in respect of personal injury or loss arising out of a breach of a duty of care in relation to the diagnosis of illness, or the care or treatment of any patient; and arising as a consequence of any act or omission by a healthcare professional. Possible outcomes include financial compensation, the giving of explanations and, in appropriate cases, contracts for future remedial care.
Another alternative to litigation is the NHS complaints procedure, through which individuals can complain about the service provided to them or, in some cases, a member of their family by NHS staff, including GPs, doctors, nurses and ambulance crew. This process will not lead to any disciplinary action being taken, but can establish whether there were any failings in the care provided.
If you wish to make a complaint, it is necessary to complain directly to the healthcare provider in the first instance. If you remain dissatisfied following their response, you can pursue your complaint to the Health Service Ombudsman, who has the power to either request that the body complained about reconsiders the case or to investigate the complaint themselves. Investigations can result in financial compensation, apologies, explanations and systemic improvements.
There are also specific bodies that can instigate disciplinary proceedings on negligent doctors or midwives, specifically the General Medical Council and the Nursing and Midwifery Council. These bodies have responsibility for the investigation of complaints about specific doctors or midwives and the individual in question can be completely suspended from practice. However, there is no financial compensation for the complainant.
An individual claiming medical negligence will ultimately need to take this option if they are seeking a significant amount of compensation. An NHS hospital (or usually the trust/health authority that controls it) is responsible for the acts and omissions of its staff and will be the defendant in any claim against individual employees. A general practitioner is liable for his own acts and the acts of his employees.
The standard of care expected from medical staff is that of the ordinary, competent practitioner who professes to have that particular skill. In order to establish whether there has been a breach of that duty of care, the courts will assess whether the defendant acted in accordance with a practice accepted as proper at that time by a responsible body of medical opinion skilled in that particular art.
Moreover, even if the act/omission is considered to be a breach of care, the claimant must prove on a balance of probabilities that the defendant’s breach caused the damage claimed. That being the case, you should be aware that medical negligence cases are notoriously difficult to win.