Clinical Negligence in the NHS

To sue the NHS for negligence, you must prove fault on the part of NHS healthcare professionals. You must prove that this fault has caused you harm personally, that you would otherwise not have experienced.

Clinical negligence occurs when the care or treatment that you experience falls below the reasonable professional standards you should expect.

You can experience clinical negligence in a number of ways, such as during surgery, or as the result of a delayed or incorrect diagnosis.

You can claim for clinical negligence against the NHS if the treatment you receive has fallen below a minimum, professional level of competence, resulting in you suffering an injury.

It is also possible to claim for clinical negligence if you are the next of kin of someone who has died due to negligent care, or who cannot represent themselves (for example, if they have a mental disability, or they are a child).

The crucial aspect in making a claim is that you are able to prove that negligence has occurred.

A vital aspect of clinical negligence claims is duty of care.

We expect medical professionals to exercise a reasonable degree of skill and care in the work they do, because, as professionals, they represent themselves as having certain above-average skills.

They therefore have a duty of care towards us, as patients.

As the claimant, it is up to you to prove clinical negligence, and there are two distinct elements involved in this:

• You must prove that the doctor or other healthcare professional has broken their duty of care owed to you, and

• You must prove that any resulting injuries you have suffered would not have occurred otherwise.

Proof of negligence and causation is central to making a successful claim. If, for example, the treatment you receive is unsuccessful, or does not meet your expectations, this is not necessarily negligence.

The British Medical Journal (BMJ) points out that the amount the NHS is spending on clinical negligence is escalating.

In 2018-19, the NHS paid nearly £2.4bn in clinical negligence claims. This amounts to around 2% of the entire NHS budget in England.

According to the Public Accounts Committee, a small number of high value claims accounts for a high proportion of these costs, and these claims are mainly related to maternity care.

One reason these claims are so high is that when they relate to brain injury at birth, and this will have catastrophic effects on the sufferer over a lifetime.

The forecast for 2020 has been that spending will consume 4% of the total income of NHS trusts (this figure came before the widespread impact of Covid-19).

NHS Resolution, the litigation authority of the NHS, has been working to reduce some of the legal costs of clinical negligence claims, with a commitment to early admission of liability. It is also using various forms of mediation.

The result is the NHS settling more claims before they get to court.

According to NHS Resolution, the average value of an individual claim is around £50,000, but there is no set amount.

This is because medical conditions present themselves differently, with different outcomes, which will affect how much a claimant can claim for.

A compensation claim for clinical negligence has the aim of returning you to a quality of life you had before suffering your injury due to negligence.

Therefore, the amount you can expect to claim will depend on the extent of the losses or injury you have experienced, and what the costs will be towards recovery or further treatment. As a claimant, you may also require long-term changes to your living arrangements, which your claim should cover.

It is hard to calculate precise figures for clinical negligence claims because of the difficulty in putting a value on someone’s quality of life.

Another factor is that many claims are settled out of court, and are confidential, which means the details of pay-outs are not known.

There are, however, general principles for valuing claims, according to NHS Resolution:

• The lump sum payment that compensates the claimant for pain, suffering and loss of amenity is called general damages. The court should base this figure mainly on previous awards in similar cases. There are also some published guidelines.

• There can be specific financial losses arising from the claimant’s injury; incurred up to the point the claim is settled i.e past losses and also future losses including loss of earnings and care and assistance costs. These are called special damages.

• In addition to the lump sum, in certain circumstances mainly high value cases there may also be annual periodic payments to cover future losses.

The Judicial College regularly updates guidelines for assessing damages in personal injury cases, but not all injuries fit neatly into these guidelines. Claimants can suffer financial losses that are very specific to individual circumstances.

The idea of appearing in court can be a daunting one, but, in most cases of NHS negligence claims, this does not occur.

NHS Resolution handles all claims against the NHS. Its approach is to try and settle these cases out of court.

And according to NHS Resolution, this applies to 98% of claims, where either the NHS settles the claim, or the claimant withdraws their claim.

Clinical negligence cases vary in complexity. More complex cases will take more time to conclude.

Therefore, while how long is a common question for claimants, it is also a difficult question to give a definite answer to.

Legal litigation may add intricate layers of detail to a claim, even where demonstrating that the claimant has suffered injury or loss is relatively straightforward.

No two claims will be identical, and if there is the need for specialist medical opinion, this is likely to extend the claim process further, especially at its earlier stages.

Here is a rough guide to timelines for settling NHS claims:

• Simpler, hospital negligence claims which are non-contested can take 18 months to two years

• Clinical negligence cases that go to court may take three to four years

• More complex, contested cases can take five to six years.

The nature of the claimant’s injury and how this impacts, and continues to impact, on their quality of life can affect the length of a contested case.

For example, brain damage will be likely to have life-changing consequences. Clinical negligence cases become more complex if they involve judgements to do with future provision for the claimant, to establish a benchmark quality of life.

Causation can be another sticking point that extends a case, if evidence is required from a variety of sources and parties.

Establishing causation can be a difficult part of a clinical negligence claim. It relies on demonstrating that on the balance of probabilities the cause of your injury is as a result of a breach of duty of care.

If there are multiple factors involved in clinical negligence, such as various possible grounds for an injury, then this can make a claim more complicated.

These issues and factors that may contribute to lengthening a claim highlight the importance of having good, clear legal advice and support when making a clinical negligence claim against the NHS.

Even though most cases are settled out of court, claimants cannot guarantee this will happen, and should therefore prepare their cases carefully.

Time limits for making a clinical negligence claim will vary, depending on the nature of the case.

The usual time limit if you are a mentally capable adult is 3 years from when the original incident occurred. You must have started your claim and issued proceedings at court.

Making this type of claim is separate from any other complaints procedure, so even if you have already written to the NHS to complain within the three year period, this does not count as making an actual claim for clinical negligence.

There are exceptions to the three-year limit, however.

If the claim is on behalf of someone who cannot manage their own affairs, due to mental disability, then the three year period only applies if, or when, they recover from this.

And if the injured person is a child, the three year limit will only start from the date of their 18th birthday.

There can also be cases where suffering due to clinical negligence only comes to light until months or years later after the cause, such as a botched operation or a misdiagnosis of cancer.

In these cases, the three year limit applies from the time the claimant discovers they have the injury.

Therefore, while it may be less common to discover an injury 10 years after the cause, it is not impossible.

Your right to complain about any aspect of NHS care, treatment or service is a part of the NHS Constitution.

Most hospitals have a Patient Advice and Liaison Service (PALS), which can help you resolve issues informally. The NHS advises that you should make a complaint within 12 months of an incident.

At this stage, making an official complaint is normally something you would do yourself, rather than going through a solicitor. You can then submit it to an NHS PALS.

This is completely separate from making a clinical negligence claim. But your letter of complaint and any responses you receive will be important as evidence if you make in a clinical negligence claim.

If you make a complaint to the NHS and you are not satisfied with the response, you can take it to the Parliamentary and Health Service Ombudsman.

But again, this is not the same as making a clinical negligence claim for compensation.

To make a clinical negligence claim, you should use a specialist clinical negligence solicitor. A solicitor will be able to look at the evidence and advise whether you have a realistic claim to make.

This comes back to the issue of proof and establishing causation.