The purpose of the NHS is to provide access to quality healthcare for everyone, from prescriptions and routine screenings, to emergency services, surgeries and end-of-life care.
But given the breadth of services offered, and the increasing pressure put on NHS resources from a growing patient population in the UK, it is not surprising that things can, and do, go wrong. However, in serious cases, mistakes can result in devastating outcomes for patients, from debilitating life-changing injuries to life-threatening complications and even death.
Although an award of compensation cannot make up for the potentially catastrophic consequences of medical negligence, this can help a patient or loved ones to get some justice for what has happened and to provide the financial support to move forward, especially where a person has been left with lasting physical or psychological symptoms.
The following guide to medical negligence NHS compensation claims provides an overview of what these types of claims involve, from how much money you can claim and what you will need to prove to succeed, to how long the whole claims process is likely to take.
What is a medical negligence NHS claim?
The National Health Service (NHS) refers to the very broad range of government-funded medical and healthcare services that everyone living in the UK has access to for free. As such, a medical negligence NHS claim can cover all kinds of different scenarios in which a patient has unnecessarily suffered either illness or injury, or an exacerbation of an existing condition, as the result of some wrongdoing on the part of an NHS healthcare professional.
Common medical negligence NHS claims can include errors made not only by GPs, or by hospital nurses and doctors, but by any NHS professional, from pharmacists through to consultants. Claims can commonly include prescription errors, treatment or surgical errors, and medical misdiagnoses. In some cases, the effects of a medical mistake may be minor and short-lived. However, for others, the effects can be both significant and permanent.
Medical negligence, also commonly referred to as clinical negligence, is essentially a term used to define an incident where a medical professional such as a doctor, nurse or any other practitioner involved in a patient’s care has breached the ‘duty of care’ obligation. This is something that every medical or care professional must adhere to. The cause may be ignorance, carelessness, disregard of a procedure, or for any other reason, provided there has been some want of care on the part of the NHS healthcare professional in question.
Can you claim compensation against the NHS?
Provided you can prove that there was some wrongdoing on the part of an NHS healthcare professional, and that wrongdoing caused you some form of harm, over and above that for which someone else was not to blame, you can claim compensation. In fact, thousands of compensation claims are brought against the NHS every single year.
In recent official figures released in October 2022 by NHS Resolution, the arm’s length body of the Department of Health and Social Care that deals with NHS litigation, the NHS received 15,078 new compensation claims during the year 2021/22. This was up from 13,351 in 2020/21, and equates to over 40 claims per day, where the number of claims the NHS receives has been gradually increasing over the course of the last 5 years. Further, the NHS compensation payouts for the year 2021/22 amounted to a huge £2.4 billion.
How much is medical negligence NHS compensation?
The amount of compensation for medical negligence claims can vary from case to case, where the value of any award will depend on the nature and severity of any illness or injury suffered because of the alleged wrongdoing, and the impact of this on the patient’s life.
For example, if you suffer from a medical condition due to a surgical error or incorrect treatment, one that could have been wholly avoided, you can potentially claim for all of the consequences that follow as a result of that condition. In contrast, if you suffer from added but avoidable medical complications because of an act or omission on the part of an NHS healthcare professional, or from increased symptoms or a more protracted recovery process, any compensation will reflect your additional pain and suffering.
However, almost all compensation in the context of medical negligence NHS claims will comprise two distinct heads of loss: general damages and special damages.
General damages
General damages is a sum of money to reflect the pain, suffering and loss of amenity caused by the medical negligence, where loss of amenity refers to the impact of the injury on your enjoyment of life. This includes any impact on your family life, social life and hobbies, as well as any reduction in your ability to do your job and perform everyday tasks. The sum of general damages also takes into account your medical prognosis, ie; whether there are likely to be any long-lasting effects from the illness or injury suffered in consequence of the negligence, and the extent to which any treatment would be successful.
Whilst it is recognised that no two cases are ever precisely the same, justice requires that there be consistency between compensation awards. This means that when assessing an award of general damages, NHS Resolution (and the courts where a settlement cannot be reached) will make reference to the ‘Judicial College Guidelines (JCG) for the Assessment of General Damages in Personal Injury Cases’. The JCG guidelines classify injuries according to the part of the body injured, such as injuries to internal organs, or brain and head injuries, as well as the degree of severity. The appropriate award is given as a range, with some guidance as to what features would justify either a higher or lower award in certain cases.
For example, for injuries resulting from brain damage in 16th edition of the JCG Guidelines (2022), the level of award within the very severe bracket (from £282,010 to £403,990) and moderately severe bracket (£219,070 to £282,010) will be affected by things like life expectancy, the degree of insight, ability to communicate and the extent of any behavioural problems. Importantly, however, the JCG brackets represent guidelines only, where each assessment made has to be based upon the facts of the particular case. The guidelines are also regularly updated to reflect the awards being made by judges.
Special damages
Special damages are far easier to calculate than general damages. This is because they refer to actual financial losses flowing from any illness or injury suffered in consequence of the alleged medical negligence. A claim for special damages will commonly include loss of earnings, both past and future. A special damages claim can also include the costs of any further medical treatment or prescriptions needed; the cost of any care, even if provided for free by a family member, known as a gratuitous care claim; as well as any special adaptations or mobility aids etc for any temporarily or permanently disabling injuries.
Needless to say, no monetary award can take away the traumatic experience of a medical mistake, or remedy any irreversible symptoms, but it can ensure that you are not out of pocket and help to ease some of the financial pressure so that you can focus on any further recovery or, where symptoms are permanently debilitating, adjusting to a new way of life. Compensation is essentially aimed at putting you back, as closely as possible, to the position you were in prior to the negligent medical treatment or care provided by the NHS.
What will you need to prove to claim NHS compensation?
Medical negligence claims can be difficult, but not impossible, to prove, where many of these claims will settle without even going to court. However, for NHS Resolution to even consider a payout (or for the court to make a finding of liability against the NHS and grant an award of damages) the Claimant must be able to prove, on a balance of probabilities, that there was some breach of duty on the part of an NHS healthcare professional.
To prove a breach of duty of care, the healthcare practitioner must have have acted in such a way that fell short of acceptable professional standards. There are two legal tests that will be applied in this analysis: the Bolam and Bolitho tests. Combined together, these tests state that a practitioner will not be negligent if they act in accordance with a responsible body of medical opinion, provided that the court also finds such an opinion to be logical.
Further, even if the Claimant can prove breach of duty, the harm suffered must be shown, again on balance, to be directly linked with the failure of the NHS healthcare professional to meet appropriate standards. If, for example, there was a good chance that the harm suffered would have taken place even if that practitioner had acted differently, then your claim is unlikely to succeed. You must establish both a breach of duty of care ‘and’ causation to be entitled to a compensation payout for a medical negligence NHS claim.
How to claim against the NHS for medical negligence
When bringing a medical negligence NHS claim, you should seek the advice of a specialist solicitor with experience of securing the maximum possible settlements for their clients from NHS Resolution and, where necessary, the maximum possible award from the courts.
Importantly, however, where court proceedings prove necessary, a claim must usually be issued within a period of 3 years of the alleged negligence taking place or within 3 years of becoming aware that something went wrong. If you delay seeking legal advice or taking legal action, you may lose the opportunity to pursue a compensation claim. For those that lack capacity, ie; those under the age of 18 years or without the mental ability to make the necessary decisions, they are not subject to a limitation period. Still, securing a settlement as soon as possible on their behalf can often make the task of caring for them much easier.
In cases where the 3-year time limit applies, this does not mean that a compensation claim must be concluded within this timeframe. It simply means that court proceedings, where necessary, must be issued within no more 3 years. The case will then go through various stages of court proceedings, from case management directions through to a final hearing. Further, even where proceedings are issued, very often these claims will settle before a final hearing, once all the medical evidence has been finalised and carefully considered.
Importantly, the process of taking legal action is only about claiming compensation, where the court cannot discipline healthcare practitioners, force a hospital or individual to change how they work, or make a practitioner apologise to you. Before making a claim you may want to consider, in conjunction with your solicitor, using the NHS complaints procedure to find out more about what happened and to help you to make an informed decision.
How long does a medical negligence NHS claim take?
The time involved to start and complete a medical negligence NHS claim will all depend on the complexity of the facts involved, and whether or not NHS Resolution is prepared to accept liability on the part of the healthcare professional involved. In most cases, unless the facts are extremely clear cut, you will need your solicitor to help you build a case against the NHS, typically with reference to independent medical opinion. Expert opinion will also be needed to help assess the value of any award, where this can take several months or sometimes years, especially where the prognosis for your recovery is not immediately clear.
However, few medical negligence cases reach court, where NHS Resolution will very often make offers of early settlement to help minimise the litigation risks on the part of the NHS. As such, with the right legal advice and representation, you may be able to receive a satisfactory payout or, at the very least, an interim payment, to help you move on.
Medical negligence NHS FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
