If you believe you have suffered an injury or illness as a result of negligent medical treatment, you may be entitled to make a claim. In this guide we talk you through the options available to you whether you were treated on the NHS or by a private practitioner.
Medical negligence can lead to illness, injuries or even death, all of which can be claimed for. The types of injuries that can be claimed for are wide ranging, although the more common ones include:
- Brain injuries
- Pregnancy and related injuries
- Spinal injuries
- Amputation injuries
- Orthopaedic and surgical injuries (including cosmetic surgery)
- Aggravation of an illness as a result of poor or late diagnosis
- Illness caused by poor standards (e.g. hygiene)
- Nursing/care home abuse
Public: If you were treated in an NHS hospital you have the right to complain about any aspect of the treatment using the NHS complaints procedure. If you want to complain on behalf of another person, the hospital or practice must agree that you are a suitable representative.
Private: If you think a doctor, surgeon, or other medical practitioner has been negligent, before you make a complaint you’ll need to consider what kind of outcome you’re looking for. For example you may want an apology, a refund, free corrective treatment or compensation.
Public: The time limit for using the official complaints procedure is 12 months; although this can be extended in some cases. For example, if it is deemed it would have been very difficult for you to complain within the limit because you were undergoing trauma. The time limits for legal action are different and depend on the sort of legal action you are considering. Check what the time limits are for any course of action you’re thinking about.
Private: If you’ve decided to pursue compensation as a result of medical negligence you must start legal action within three years of the negligence occurring, or of when you first became aware of it.
The total amount of the compensation to be claimed is based upon the follwing elements:
- How serious is your illness/injury
- How much it has cost you so far and will cost you in the future
- Will you need care in the future and cost
Public: There are several different outcomes that can stem from a complaint of medical negligence, from an apology to having the practitioner you feel was negligent disciplined or even prosecuted to compensation. While the NHS complaints procedure isn’t specifically designed to award compensation, NHS bodies and the local authority do have the power to make one-off payments, known as ex-gratia payments.
However, if you’re asking for a large amount of money, you should take legal action. If you’re offered an ex-gratia payment, take advice from a solicitor or specialist organisation, because if you accept it, it usually means you can’t take legal action at a later date.
If they refuse to pay compensation and your complaint gets referred to an Ombudsman, they can order compensation, although this is usually much less than you could be awarded if you took legal action and your case went to court.
If your injury was caused by a faulty medical device, for example, a pacemaker, you may be entitled to claim compensation under the Consumer Protection Act. This also applies to medical products, for example if you were made ill from a blood product your claim would be against the manufacturer of the product, and possibly the importer or supplier, not the hospital or doctor who treated you. There are specialist legal advisers who specialise in these types of claims.
Private: If you suffer with injury, pain, inconvenience, or extra costs because of negligence, you are entitled to compensation. This can also include loss of earnings. To begin with you should try and negotiate with the practitioner in question first. You may want to get some advice about this.
If you’re unsatisfied with the outcome and want to take legal action, seeking expert legal advice as soon as possible is highly recommended. You can find the details of solicitors in your area who deal with medical compensation cases from Action against Medical Accidents.
If you can’t resolve a problem directly with the practitioner there is also the option of contacting the professional organisation that regulates that area of practice. It will usually only help with complaints about serious misconduct, but they may be willing to act as an arbiter on other matters.
It can be very difficult to prove medical negligence. Often it comes down to personal or professional judgement of your practitioner about what was the most appropriate treatment in your case. This may require a second opinion and other practitioners might be less than enthusiastic about involving themselves in a complaint against a fellow practitioner.
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