Steps to follow
If you have a medical injury caused by the negligence of someone in the NHS and feel you’re entitled to compensation, take legal advice as soon as possible.
A specialist clinical negligence solicitor can tell you if you have a strong enough case to sue for compensation. They may agree to act for you on a no win, no fee basis so it might not cost you anything. Choose someone with lots of experience in handling these kinds of cases – preferably a member of the Action against Medical Accidents’ (AvMA) panel or the Law Society Clinical Negligence panel.
You may have a claim for compensation if the treatment you received from eg, a doctor, hospital, dentist, nurse, midwife was not of a reasonable standard and you suffered loss or injury as a result. You may also be able to claim if your spouse or child dies because of the negligence of the healthcare worker.
A clinical negligence claim will only be successful if you can show – on the balance of probabilities – that: the healthcare worker made a mistake in treating you which no other competent person in their position would make; and those mistakes caused, or significantly contributed to, the harm you suffered.
Make a note of everything that happened in the run up to, during and after the injury occurred, including names, dates, appointments, consultations, conversations, procedures, etc.
Keep a copy of any document related to your treatment and your injury any subsequent correspondence you may engage in (including any complaints you make and the replies you receive about these).
When you see your solicitor s/he will need lots of information from you so try and gather together as much as you can beforehand. S/he will need to know: your medical history; why you had the medical treatment which caused the injury; details of healthcare workers involved (before, during and after the negligent treatment); what the doctors diagnosed, advice given and suggested treatment; warnings given about the risks of the treatment and alternatives offered; details of witnesses; notes of conversations at later consultations; complaints made since the injury.
Your solicitor will need to obtain copies of your medical records, including those held by your GP and those from the hospital where you received the offending treatment.
Your solicitor will almost certainly engage the services of an expert who will specialise in the treatment you received. On the basis of statements (yours and those of witnesses), medical notes and records, s/he will write a report stating whether they believe your treatment was negligent. The defence may also hire an expert witness who might ask to examine you in preparing his/ her report.
If the case is not settled out of court, a judge who specialises in these sorts of cases will come up with a case management plan which may include a number of directions such as asking the expert witnesses to meet and discuss their differences or ordering you and the defendant to mediate to try and sort out a solution between yourself before the matter proceeds to full trial.
If the case does proceed in court you may be required to give evidence and your solicitor/ barrister will be able to tell you what this involves and what will be expected of you.
You can make a complaint using the NHS complaints procedure – if you don’t and you later apply for legal aid, you may be turned down. Complaints should be made within six months of the date of the injury, or within six months of when you knew of the harm (must be within one year of the problem). The NHS Trust/ health authority which provided the treatment must investigate promptly and respond to your complaint. If you are not satisfied with the response, ask for an independent review from the Healthcare Commission or complain to the Health Service Ombudsman.
What to watch out for
You will usually need to bring your clinical negligence claim within three years of the injury suffered or three years from when you discovered the harm or reasonably should have discovered the harm.
Solicitor’s top tip
Your solicitor will almost certainly try to settle the matter – and win compensation for you – before the matter reaches court. Be realistic about what you will accept: going to court can be a very trying experience and there is no guarantee that you will get as much as you were offered in the out-of-court settlement.
Choosing a personal injury lawyer
Overview of medical injuries
Do I need a lawyer? (personal)
What documents do I need when meeting a lawyer?
Choices if you cannot afford a lawyer