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How to claim compensation against the NHS for medical negligence

The NHS has a duty of care to keep you safe. If you’re looking to sue the NHS for medical negligence, our specialist lawyer team can get your claim started.

Last updated on April 26th, 2021

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The most important things to remember when taking legal action against the NHS are:

  • The NHS has strict standards to provide care
  • You need to be able to prove causation and negligence
  • You can claim on a No Win, No Fee basis
  • You generally have three years to make a claim
  • Your compensation total will vary depending on how your life has been affected.

NHS Negligence Compensation Claims

The NHS is here to provide an affordable standard of healthcare to everyone, from dentistry to operations and GP visits. The service is also under incredible strain, so on the rare occasion that they don’t get it right, Express Solicitors is here to help.

We offer more than 20 years’ experience in settling compensation claims for NHS negligence. If you’ve been let down by your doctor or another NHS medical professional, get in touch. We can help you make a claim for physical injury and any other adverse changes to your life.

What Is NHS Medical Negligence?

NHS negligence refers to medical professionals failing to keep to their duty of care. This may be due to human error, such as diagnosing the wrong medicine, accidents, or malpractice in certain environments – such as poor hygiene on hospital wards.

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What qualifies as medical negligence?

As the NHS provides such a broad range of services, negligence can come in many forms. For example, we can help you claim for:

  • Incorrect prescriptions or wrong medication
  • Misdiagnosis which led to further illness
  • Dental injuries
  • Surgical errors
  • Venepuncture injuries (needles)
  • Infections due to poor hygiene.

Many cases of negligence can lead to more damaging effects long-term, so we will review your case and consider this while assessing your compensation total.

How Do I Know if I Can Make a Claim?

If you were treated by the NHS, it is your right to receive a good standard of healthcare – whatever your treatment. Medical  or clinical negligence from GPs, hospitals or other NHS professionals should not be overlooked, and we can help you to claim if you’ve been injured.

Who is entitled to make NHS negligence claims?

To qualify for a successful NHS negligence claim, you must be able to prove that your caregiver did not meet NHS standards. In medical terms, we call this the ‘Bolam Approach’ – ensuring that the professional acts to the standards of the governing body, in this case, the NHS.

You must also be able to prove that the professional’s negligence or accidental damage was directly linked to your injury.

Can you sue the NHS for negligence?

There are essentially two types of claims you can make against the NHS – ‘negligence’ or ‘causation’. Negligence is when staff members failed to do something, which in turn meant they did not meet standards. They may have forgotten to warn you about surgery risks, for example.

Causation is a mistake that causes you physical or psychological harm, such as a surgical error.

How do you prove liability in NHS negligence claims?

You need to be able to provide us with evidence to start the litigation process. As your claim will relate to NHS treatment, you should make copies of all medical records and reports, particularly those who specialise in the field that relates to your injury. Occasionally, you may need more than one opinion, depending on your injuries.

This documentation can prove both causation and negligence. For example, it will outline the details of your injury, but it will also record any negligence, such as reporting accidents in the operating theatre.

How Much Is My NHS Negligence Claim Worth?

When we assess your claim, we will consider both ‘general’ and ‘special’ damages. General damages relate to the physical harm you suffered, while special damages concern other factors, such as loss of earnings.

There’s no set compensation amount for NHS negligence claims, but we can refer to the Judicial Board Guidelines for ballpark figures on injuries to certain body parts:

  • Injuries to internal organs could be as high as £146,000
  • Injuries which paralyse all or part of the body can range from £39,000 to £322,000
  • Injuries resulting in brain damage or sight/hearing loss could be as high as £322,000

What is the average payout for an NHS negligence claim in the UK?

NHS Resolution (formerly the National Health Service Litigation Authority) states that the average NHS compensation claim total is £50,000. However, this can be anywhere from as little as £1,000 for minor damages, to six-figure payouts.

Who pays for NHS negligence claims?

NHS Resolution was said up to pay for NHS negligence claims, effectively acting as an insurer in the event of compensation payouts. It is funded by individual NHS trusts around the country, which in themselves are funded by the taxpayer. In 2019, NHS Resolution spent some £83.4 billion on medical negligence claims.

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What Is the Process for Making a Claim?

If you’re still undergoing treatment, it’s best to wait for this to finish before you make a claim. This is because NHS claims are settled on a “full and final” basis, which means you cannot make a second claim if your symptoms worsen later on.

Generally, there are four steps to claiming against the NHS:

  1. You should start by giving us a call when your treatment is finished on 0161 904 4660. We’d ask you to prepare as much evidence as possible – namely, copies of medical records and anything else you might consider to be useful, such as witness statements or receipts for special damages.
  2. We will send one of our trust medical advisors to examine you and send a report back to us. This report will cover two areas – a ‘breach of duty’, meaning the NHS has failed to live up to its standards, and ‘causation’ – the damage caused. Once we have a solid case confirming your injury and the NHS’ liability, we will send a ‘Letter of Claim’.
  3. The NHS has four months to respond to our claims, though this may be quicker thanks to the help of NHS Resolution. We will use this time to assess the impact the injury has had on your life, and recommend a final settlement figure. If the NHS admits liability, you’ll be awarded compensation minus our fees.
  4. If the NHS contests your claim (does not admit liability), then we may have to take this further. Court proceedings can happen, and we will represent you in a trial if we think you have a claim.

How long does an NHS negligence claim take?

NHS negligence claims are generally quicker than if you were to claim against a private organisation or insurer. However, you should expect a minimum of four months, with 18 months to two-year waiting times also very common. The more severe your injury, the longer the claim will take. We generally aim to settle all NHS negligence claims within a few months.

Types of NHS Negligence Claims

Remember – negligence claims relate to injuries caused when a professional has neglected to do something. This could be neglecting to check for foreign objects during surgery, or forgetting to warn you about risks associated with certain operations. You can generally make a No Win, No Fee claim against the NHS for:

  • Misdiagnosis
  • Incorrect medical advice
  • Surgical errors
  • Prescription errors
  • OBG (ObGyn) negligence, for pregnant mothers and those in childbirth
  • ‘Never events’ – completely preventable events such as operating on the wrong organ.

You deserve to receive the best possible NHS care possible, so if you’ve been let down, we are here to help.

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NHS Negligence Claims Statistics

Unfortunately, with increased pressure on the NHS, medical malpractice is on the up. According to NHS Resolution, an additional £61.4 million was spent on settling general practice claims in 2019/20. Other figures include:

  • More than 11,000 new clinical claims and reported incidents were recorded in 2019/20
  • There were more than 15,000 claims in 2019.20, 71.5% of which were resolved without court proceedings
  • Just 0.6% of claims went to trial
  • Maternity claims have the highest compensation, representing half the value of all claims.

What Are the Time Limits for Making an NHS Negligence Claim?

You will have three years from the date of your injury, or the date you realised your treatment caused the injury, to make a claim. There are exceptions to this, however, particularly if you’re claiming for somebody else.

  1. If the claim involves a minor under 18, then you can claim for them until their 18th birthday, or they can claim for up to three years after this.
  2. If you were ‘mentally incapacitated’, for example with a brain injury, there was no time limit. This also applies if you’re representing somebody without full mental function.

Differentiating Between NHS Complaints and NHS Compensation

In some cases, you may not wish to pursue full monetary compensation, but make an NHS complaint instead. You may wish to make an NHS complaint if you feel you do not have grounds to make a compensation claim – we can advise you on the best course of action.

You may also be able to make a complaint as the first step to making a compensation claim. The NHS has a reliable complaints procedure, which may vary from trust to trust. You can get a copy of this in person, over the phone, on the website, or by email.

You can make an NHS complaint in writing, or in person, within 12 months of your injury. You can also submit this to the commissioning body if you’re not comfortable dealing with somebody directly. You don’t need a lawyer, and this complaint may give you more options for making a claim. You can also speak to:

  • Citizens’ Advice
  • Patient Advice and Liaison Services
  • Independent Health Advocacy Service

Complaints differ from compensation claims in many ways. With compensation, the payout is final, and you cannot pursue the claim afterward. The NHS does not have to issue an apology or take steps to prevent this from happening again. You’ll also have three years to claim compensation, whereas complaints are limited to one year.

Can I Still Claim if I Have Been Injured by an NHS “Never Event”?

NHS never events are rare – approximately six patients per week – but they are preventable. The NHS regularly updates what they consider to be a ‘never event’ to keep you safe. Currently, you can claim for incidents such as:

  • Wrong site surgery, for example, operating on the wrong ear
  • Leaving a foreign body inside your body after an operation, like a surgical tool
  • Failing to give you enough oxygen
  • Administering chemotherapy (cancer) drugs through the wrong route
  • Death from postpartum haemorrhage (bleeding) following an elective Caesarean.

These claims are generally more successful as they are completely preventable. However, you still need to prove that you were physically harmed. We can help you if you’re not sure.

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With more than £160 million in compensation, we are experts at NHS medical and clinical negligence claims. For a sensitive, No Win, No Fee claim, contact the Express Solicitors team today.

Can I still access the same care I am currently receiving?

You still have the right to be treated by the same practice you were at before your claim. We recommend you take legal action after your treatment, but if this is not possible, you can carry on. You do have the option to change, however, if this makes you uncomfortable.

Will the health professional who treated me lose their job?

As specialist medical negligence and clinical negligence claims solicitors, we have no say over what happens to individuals when a compensation claim is issued. However, these claims are usually against larger organisations, rather than individuals, so it’s unlikely that any individuals will lose their job. The General Medical Council may monitor individuals to check if they are fit to continue practising.

Are NHS claims ethical?

NHS compensation claims do not exist to help you benefit financially. They are there to compensate for the damage and suffering you have undergone as a result of medical malpractice. They also do not come directly out of the NHS’ budget, so you are not depleting resources if you do need to make a claim.

Do successful medical negligence claims take money out of the NHS budget?

No. The NHS has NHS Resolution, which acts as an insurer to pay out for medical negligence claims. This is funded by individual NHS Trusts around the country, which are funded by the taxpayer.

Will I have to go to court?

This is very unlikely – in 2019, just 0.6% of claims against the NHS went to court. We understand how stressful this can be, and in the unlikely event it does happen, we will be there to support you.

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