When a relative or loved one is admitted to hospital, you put your trust in the hands of those who know best. More often than not this is the case, and patient care in the UK is very high, both in the NHS and at privately run hospitals. Unfortunately though, errors do occur, which can lead to devastating consequences, including further injury or loss of life. This could be an act of hospital negligence, leading to a potential claim against the hospital for compensation.
Types of hospital negligence
Hospital negligence can cover a number of different errors caused by malpractice and misjudgement, which can include:
- Failing to carry out an examination properly or noting downin correct symptoms
- Failing to give correct medication, treatments or diagnoses
- Errors during surgery
- Poor after-care support
- Failing to notice when a patient deteriorates
- Failing to take a patient’s medical history into account
- Failing to operate when required
- Brain injuries caused by a lack of oxygen
Making a hospital negligence claim
Before taking legal proceedings with your solicitor, you can complain via the NHS complaints procedure (if the claimant is using the NHS for care). This will provide you with a detailed explanation as to why the decision, treatment, or error was made. This route isn’t compulsory but may provide you with evidence for a legal challenge. Taking legal action against a hospital can often be very complex, so it is important that you build a strong case and take all necessary steps.
This system has two stages:
- Local Resolution – You can complain to the Chief Executive in charge of the hospital and that complaint will be investigated. If you still remain unhappy, this matter can be taken to the Parliamentary and Health Service Ombudsman.
- The Health Service Ombudsman – This is an independent body from the NHS and Government. You must submit your complaint no longer than 12 months after the date of the event.
How do I legally claim for hospital negligence?
A complaint can be made by the patient, a person likely to be affected by the negligent care/treatment, or somebody acting on behalf of the patient, with their consent.
In order to pursue a claim, the claimant needs to prove the following:
- Evidence that there was a breach of duty or care
- That the breach of duty of care has caused harm to the claimant
- That damage or other losses have resulted from that harm
How long do you have to make a claim?
If you’re looking to make a claim, you have three years from the date of the negligent care/treatment, or from your date of knowledge that there has been potential negligence. However, if you were under 18 years of age at the time of the negligence, you have three years from your 18th birthday.
An exception to the rule is where the claimant is a ‘protected party’. This is a person who lacks the mental capacity to make certain decisions for themselves. Where the capacity never returns, there is no time limit for bringing a claim. However, if at some point the Claimant regains capacity, there will be a time limit of three years from that date.
The legal process
Initially, medical records will be obtained in order that investigations can begin into the allegations of negligence. A medical expert will be instructed to consider the records and prepare a report on the treatment/care provided and to comment on the further harm caused by the alleged negligence.
Ultimately, medical experts from both sides will be instructed to prepare detailed reports and medical evidence and other documents will be exchanged as the claim progresses.
A letter of claim will be sent by the claimant and the Defendant will commence investigations into the claim in order to respond either with an admission or denial of liability.
If the case continues to have reasonable prospects but there is no admission of liability or offer of settlement forthcoming, court proceedings will be commenced and will lead up to a trial if necessary to determine the outcome of the claim.
Court proceedings are timely and costly, so the vast majority of medical negligence or hospital claims are settled out of court. This makes it unlikely that you will need to worry about appearing before a judge. However, it is always a possibility and a claim can take a while to reach this stage depending on the complexity of the issues.