Medical
Negligence FAQs

In order to bring a claim for medical negligence, we have to prove that there was negligent medical care which has directly caused harm or injury.

Once this has been proven, a claim is made on your behalf for general damages such as pain, suffering and loss of amenity. But also for special damages which are quantifiable losses, including past and future losses, for example:

• private surgery or medications;
• loss of earnings;
• travel expenses;
• care experts;
• rehabilitation costs;
• adaptations to your current home/new home;
• employment experts.

If your loved one has sadly died as a result of medical negligence, our solicitors will look to claim any past and future financial losses, and try to provide assistance with issues such as, any care that your loved one may have provided to other family members.

Typically losses include:

• loss of maternal services;
• loss of carer services;
• statutory bereavement award;
• past/future loss of earnings;
• probate costs;
• funeral expenses.

In certain situations there may be the need for an inquest, naturally this can be difficult to deal with and we can provide you with help and guidance through the inquest process, when required.

Once we have identified whether there has been any medical negligence and the nature of the injury, we will inform you of whom we will be claiming against on your behalf.

If your medical treatment was provided by your GP, then we will sue your GP. If your medical treatment was in a NHS Hospital or the NHS paid for your care in a private facility, then we will make a claim against the Health Board or Trust that is responsible for the Hospital or paying for your care. We will not sue the individual doctor, nurse or medical professional personally. If, however, you received your care in a private hospital then we would sue the individual doctor who provided the treatment.

Making a claim for compensation where you believe medical negligence to have taken place is never an easy decision. You will have placed your trust in the medical practitioners involved, and as such, your faith in the medical profession is likely to have been shaken.

We understand that receiving bad news can place strain and worry on you and our specialist team and welfare managers are here to help make that process easier for you. By making a claim you can use any compensation that is successfully obtained in order to rehabilitate yourself and try to regain some sense of normality in your life.

Our team of medical negligence solicitors can help you to recover compensation for your pain and suffering and also to cover the costs of having the treatment rectified by another medical professional, as well as any other expenses or losses that you have incurred as a result of the negligent surgery.

You have to bring your claim within 3 years of the date of the negligent medical treatment, or within 3 years of the date that you became aware of the injury caused as a direct result of the medical treatment received.

If the affected person is a child then the 3 year period does not begin to run until the child reaches 18 years of age. Similarly, if the injured person lacks capacity to manage his or her own affairs, the 3 year period does not begin to run until he or she regains capacity. If this never happens, then the 3 year period never starts to run.

If you think that you may have a claim do not delay in seeking legal advice, as it is best to start the process as soon as you can.

If you are not happy with the medical treatment that has been provided under the NHS you have a right to have your concerns investigated and to be given a full response.

You can ask for the following under the NHS Complaints Procedure:

• an explanation for what has happened
• an apology or other statement of regret
• steps to review procedures to avoid such incidents in future

In general the NHS cannot:

• Offer financial compensation, although in some circumstances NHS bodies will agree to an ex-gratia payment for relatively small sums.
• Address issues of staff discipline, for instance sacking staff or striking off a practitioner. Although disciplinary action may result as a consequence of information obtained through complaints investigations.

Stage 1: Local Resolution

Time limits for making a complaint:

Your complaint should be made no later than 12 months after the event in question, or from the date that you were first made aware of the issues.

NHS organisations do have discretion to consider complaints outside these time limits. However, it is always best to make your complaint as soon as possible, so that the recollection of all persons involved is fresh.

Your complaint should be made in writing and addressed to the Chief Executive or, in the case of family health services, the Complaints Manager at the practice concerned.

GP and Dental Practices:

Complaints should first be made directly to the service. However, NHS England commissions most primary care services, therefore you can ask them to look into the matter. They can be contacted by:

• post: NHS England PO Box 16738 Redditch B97 9PT
• email: england.contactus@nhs.net
• telephone: 0300 311 22 33

What to include in the complaint:

• who or what you are complaining about
• where and when the event(s) happened
• what you have done already about the complaint
• the result you are looking for
• you have a right to ask for an Independent Clinical Review of the complaint by a Consultant in the relevant field of medicine or surgery, who is independent of the hospital/practice
• if there has been a Serious Incident investigation, or other internal investigation, you should usually be able to have a copy of this

What happens next?

The healthcare provider should acknowledge the complaint within 3 working days. They should then:

• give you the opportunity to discuss your complaint
• confirm the way it will be investigated
• confirm the timescale of the investigation
• confirm when you will receive the response and conclusion to your complaint

At the end of the investigation, you should receive a formal written response. Sometimes, as part of the investigation, you may be invited to a meeting.

There is no formal time limit for the NHS to investigate and respond to your complaint. However, the whole process should be discussed and agreed with you, including any extensions, and should really be completed within 6 months.

What happens if I am not happy with the response to my complaint?

If you think that the NHS has not answered all of your concerns, then you can ask them to take further steps. This can be by asking for a further investigation or examination of the medical records. You could ask the hospital to consider obtaining an independent report from a medical expert, which can be very helpful in resolving any dispute about the medical issues.

If you are still not satisfied with the response to your complaint, you have the right to request an Independent Review by the Health Service Ombudsman.

Stage 2: Independent Review by the Parliamentary and Health Service Ombudsman (PHSO)

If you have attempted Local Resolution and are not happy with the result, or the organisation you have complained about has not completed its investigation within a reasonable time, you have the right to ask for an Independent Review of your complaint by the Parliamentary and Health Service Ombudsman.

You should make a request for an Independent Review within 12 months of the incident in question occurring, or when you first became aware that something had gone wrong.

You should write to the Ombudsman providing:

• a summary of the events in question
• the main concerns
• what action has been taken so far
• the aspects that you remain unhappy with
• why you think an Independent Review would be helpful

The Ombudsman does not accept all cases for review. They will let you know within 5 days who is dealing with the matter. Many of the cases being considered by the Ombudsman will be dealt with in a matter of months and around 80% will be dealt within 40 working days.

If your complaint is found to be justified, the Ombudsman will seek an apology or other remedy for you. This may include calling for changes to prevent such an incident happening again, or reviewing procedures. The Ombudsman can recommend compensation. If the amount of financial compensation sought is very large, or if responsibility for a failing is denied, it may be necessary to take legal action.

You can write to the Ombudsman at:

The Parliamentary and Health Service Ombudsman Millbank Tower, Millbank London, SW1P 4Q

The NHS Complaints Procedure in Wales is slightly different to the current system in England following an overhaul in April 2011, it was rebranded as 'Putting Things Right'.

The system is separated into 2 parts:

• raising a ‘concern’ or;
• arrangements for ‘redress’

Under the redress, the NHS may be responsible for causing harm and therefore may offer compensation

Part 1: Raising a Concern

What is a concern?

If you feel dissatisfied with any service provided by NHS Wales then that is a concern you can raise with them.

You cannot raise a concern under this process if your concern is about private healthcare or treatment, or if the complaint that falls under the arrangements in place before 1 April 2011.

Why should I raise this with the NHS?

If they know about it, they can apologise to you, investigate, and attempt to resolve the issue. It may also help them improve their services in that area for the future so the same thing does not happen again.

How do I start to raise a concern?

You can raise the concern yourself, or a trusted friend, relative or even your local Community Health Council (CHC) can represent you (though you’ll be asked to consent to this). Your local CHC provides free and independent advocacy services to help you out, along with advice and support.

You can start by talking to the medical staff involved with your care to see if the issue can be sorted out straight away. If this isn’t helpful, or you do not want to speak with them due to the concerns you have, contact a member of the concerns team at your Local Health Board or the relevant NHS Trust. If your concern is about a GP, Pharmacist, Dentist or Optician you can ask the practice to investigate, or you can ask your Local Health Board to do this.

How long do I have to raise a concern?

Within 12 months of the incident that you are concerned about. If 12 months have already passed, but there is good reason for delay, tell the NHS anyway; they may still be able to deal with it.

What is the process after I have raised a concern?

• The NHS will let you know within 2 working days that they have received the concern.
• The NHS will investigate your concern.
• The NHS will come back to you to let you know their findings and what they are going to do. They will usually get back to you within 30 working days of when they first received your concern (but if it will take them longer, they will let you know why).

Some concerns might be investigated further under the redress arrangements. For more information on this, see Part 2 of this factsheet.

What if I’m not satisfied once I receive the NHS response?

If you’re still not happy, you can contact the Public Services Ombudsman for Wales.

Part 2: Seeking Redress

What is ‘redress’?

Redress refers to a response from the NHS where you have suffered harm/injury. The response can be one or a combination of the following:

• Financial compensation (on the understanding that the patient will not seek the same through further civil proceedings)
• Treatment to improve the patient’s condition
• An explanation
• A written apology
• A report on the steps to be taken to prevent the situation arising again

What if I am considering making a civil claim (through the courts)?

There is a time limit (called the “limitation period”) for making a civil claim for clinical negligence that expires 3 years from the date of the incident or 3 years from the date you knew you may have received negligent care.

If your concern may be subject to the redress arrangements, the limitation period is paused from the date your concern is first received by the NHS. If the NHS decides to offer you redress in the form of financial compensation, you have a maximum of 9 months to accept that offer, or the clock will start again.

How do I get redress?

Once you have raised your concern with the NHS (see above, in Part 1) you will receive an interim response within 30 days. During their investigations the NHS may decide to offer you redress.

In order to offer you redress, the relevant NHS body has to be liable under the law. This means they have to have breached their duty of care to you, and that breach must have caused the harm you suffered. If both these points are satisfied, the NHS can contemplate redress arrangements. It is therefore important to keep in mind that poor care alone may not satisfy the legal test.

If that liability can be proven, the NHS must consider an offer of redress if that liability may attract financial compensation of £25,000 or less. The arrangements will not be initiated if the value of the compensation would exceed £25,000.

The NHS will not offer redress if the concern is already or has already been subject to civil proceedings (ie court proceedings have been issued).

The redress arrangements are not applicable to issues with primary care providers or independent providers.

Decision?

The offer of redress, or decision not to make an offer, must be communicated to you within 12 months of the date the NHS first received your concern. If there are exceptional circumstances for the time period being longer, the NHS will write to you with an explanation.

Redress offer?

You have 6 months to respond to this. If you need more time, you have to write to the relevant NHS body and explain why you are delaying your response. They may then decide to extend your time limit to 9 months. As explained above, if the maximum 9 months expires, the limitation clock on your civil claim will start to run again.

You only have 9 months to consider a financial offer. After that expires, the redress arrangements will no longer apply.

If you want to accept the offer, this will be made by way of formal agreement. You or your personal representative has to sign a form waiving any right to take the same concern to court.

If you do not want to accept the offer, that is your choice. You are not bound to accept it, and if you don’t accept it you can still continue with pursuing the claim through the courts. However, this may be a point on which you should see specialist legal advice, as the offer may be reasonable. If you tried to pursue the claim down the civil route, there are likely to be cost implications for you.

Can I get help with the redress process?

Once the redress arrangements are initiated, you can get legal advice without charge in relation to getting expert evidence, any offers you receive and agreeing settlement. The legal advice can only be sought from a recognised firm of solicitors with expertise in clinical negligence matters and who are accredited by the Law Society.

What if an offer is not made?

You could make the choice to seek independent legal advice from a specialist clinical negligence solicitor about the concern. They will review the issue and see whether they think there are prospects of your claim being successful.

Cases worth more than £25,000?

As explained above, the NHS will not make an offer of redress in this case.

You could seek independent legal advice from a specialist clinical negligence solicitor to see whether there are prospects of pursuing your claim down the civil route.