The number of clinical negligence claims made against the NHS has been on a steady increase over the last few years. During the latest period for which figures are available, the years 2015 – 2016, there were 2,445 clinical negligence claims pursued against the NHS for failed or severely delayed treatment. These claims resulted in £557 million being paid out in compensation. To put that figure in perspective, it would provide an annual salary for around 16,000 nurses. Of that figure, £424 million was claimed as a result of patient’s diagnoses being delayed, and them suffering harm as a result.
With the NHS currently in crisis, struggling to meet with the extra demand placed on it over the winter of 2017, when the latest figures are available in a few months we can expect an even more disturbing picture to emerge. Given that the NHS has been trying to cope with higher demand than ever before, without the greatly expanded budget that many believe it sorely needs, it is perhaps not surprising that the situation has come to a head in this manner.
This would seem like a prudent time to raise some awareness of exactly what clinical negligence, sometimes known as medical negligence or medical malpractice, is. It involves more than a simple mistake made by a hospital or doctor. Understanding exactly what constitutes a medical negligence claim will help to put these latest figures into perspective, as well as hopefully inspiring some understanding and empathy for the staff who are currently battling the winter crisis.
What is Clinical Negligence?
Every year, millions of people receive treatment in the UK, many of them in NHS hospitals. While the standard of care that patients receive is usually excellent, there can sometimes be issues. When patients enter a hospital or another type of medical establishment, then they do so safe in the knowledge that the staff who work there have a legal duty of care towards them. This means that all the medical staff involved in looking after a patient are expected to perform their roles to the highest standard possible and to act according to the best-accepted practice in their particular field.
Sometimes things will inevitably go wrong and patients will suffer as a result. However, this does not necessarily amount to a case of clinical negligence. In order for a case to be considered negligent, there are certain criteria that must be met. In meeting these criteria, claimants demonstrate to the courts that the individuals or institutions responsible for their medical care fell below the standard of practice that would be reasonably expected of them.
The latest figures showed that more than 2,500 patients in NHS hospitals faced a wait of more than 12 hours before receiving treatment. The is undoubtedly a sobering statistic, but it illustrates a crucial point. Simply receiving sub-standard service is not in and of itself proof of negligence. A 12-hour waiting time is unacceptable by any reasonable measure, but when that wait is the result of the service being overstretched and underfunded, rather than because of any individuals taking an inordinate amount of time with their routine duties, it does not meet the criteria for negligence.
Who Handles Complaints?
There is an almost endless array of potential scenarios in which negligence may occur. While the criteria are clear and relatively strict, and rightly so, there is room within virtually every interaction between a patient and medical staff for negligence to occur. Anyone who thinks that they may have been the victim of medical negligence should qualify with a medical negligence solicitor, it is important that you consult with someone who has experience in arguing these cases, as from the outside, it can be hard to establish whether negligence has occurred.
From the perspective of a patient who has suffered in a manner that they feel is unnecessary, it is natural to seek some form of restitution. The NHS Litigation Authority (NHSLA) handles any complaints made against NHS trusts and they will aim to resolve any complaints made against them amicably. They do not exist to try and stifle complaints or to obstruct due process. An NHSLA investigation will not prejudice any investigation or process which is pursued through the court system. If a judge feels that it might for some reason, then they will order the NHSLA investigation be put on hold in favour of your own legal pursuits.
It is a testament to the effectiveness of the NHSLA for all parties that only 2% of negligence claims make it to court. The rest, a whopping 98%, are either withdrawn on the advice of a lawyer, or they are settled out of court. Settling out of court is often the preferable option for everyone involved, as it avoids the stress and expense of going to court while still allowing the claimant to receive compensation for their claim.
Is it Immoral to Sue the NHS?
The most common reason that patients decide not to pursue a complaint against the NHS is because they feel that it is immoral to seek financial compensation from such an important public institution. The situation is actually more complicated than this. In short, it is not at all immoral or greedy to pursue a negligence claim. The payouts that are awarded might occasionally be big enough to capture headlines, but they are carefully calculated.
Any compensation awarded is split into two awards: one is for the distress suffered due to physical or psychiatric damage suffered by the claimant and is usually small relative to the other component, which is a loss of earnings. It is from here that the big payouts arise, particularly where patients have been left unable to work in a high paying job, which they could foreseeably have performed for much of the rest of their life. The court will also take into account the cost of the claimant’s ongoing healthcare, this is why the tragic instances in which a young child or toddler is left permanently and irreversibly disabled usually result in multi-million-pound payouts.
One final point worth noting is that claimants can only be awarded financial compensation for a successful claim. Courts do not have the power to force apologies from individuals, nor to demand that institutional or procedural changes be adopted.
How do I Pursue a Clinical Negligence Claim?
If you feel that you have been the victim of medical negligence, then you will want to do what you can to secure the services of the best medical negligence solicitors you can find. The Medical Negligence Experts are an excellent starting point and their website is full of useful resources for researching the merits of your case and finding qualified medical negligence lawyers. If you Google search for ‘medical negligence UK’ or ‘medical negligence claims UK’ you will find plenty of websites where you can research the criteria used to decide whether a case constitutes negligence, as well as getting an idea of what the potential payout will look like if you use medical negligence solicitors to help you. The Citizens Advice Bureau is also worth checking.
With NHS negligence payouts at their highest level ever and the NHS going through what many believe to be the worst crisis it has ever faced, it is important that patients understand the obligations that hospitals have towards them, as well as the rights that they have as patients to expect the highest standard of care possible.