A Guide to Claiming NHS Negligence Compensation
If your life, or the life of a loved one, has been affected by NHS negligence we can help.
The purpose of this guide is to help anyone who has suffered NHS negligence and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
According to a recent report published by the NHS Litigation Authority (NHSLA), NHS England has seen an increase in costs associated with clinical negligence claims in recent years. Several factors have contributed to the rise, including the increase in both the number of patients treated and the number of reported incidents.
The NHSLA received 11,497 new clinical negligence claims in 2014/15 and costs were £1.192bn - demonstrating the high number and cost of claims.
NHS Litigation Authority
The NHSLA was founded in 1995 to defend any claims against the NHS. The NHSLA has pledged to:
"ensure that claims made against the NHS are handled fairly and consistently, with due regard to the interests of both patients and the NHS."
Only 2% of cases dealt with by the NHSLA reach court, with the Authority preferring, where possible, to settle cases via mediation or other forms of alternative dispute resolution. Reaching an out-of-court settlement saves both parties time and stress associated with taking formal legal action, and, crucially, reduces costs.
Wherever possible, the NHSLA seeks to offer the option of an independent mediation service. This service is intended to give the parties involved to meet, if they wish, to discuss the matter, agree a settlement and for the negligent party to offer an apology or explanation to the claimant.
The NHS Constitution
Anyone who is not happy with the care or treatment received, or who has been refused treatment, has the right to complain through the NHS Complaints Procedure.
Complaints must be dealt with efficiently and be properly investigated, and the complainant must be given a full and prompt reply about the outcome.
If person making the complaint is not satisfied with the way the complaint has been dealt with then they have recourse to the independent Parliamentary and Health Service Ombudsman.
The constitution also states that a patient has a right to receive compensation if he or she has been harmed.
Complaints against the NHS
Although it is not necessary to use the NHS Complaints Procedure before bringing a claim for clinical negligence, some claimants may find it helpful in making an informed decision as to whether or not to proceed.
Obtaining specialist advice from a personal injury lawyer is also advised.
Demonstrating clinical negligence
Demonstrating that negligence has occurred can be complex as its definition may be regarded differently by various medical experts.
Traditionally negligence has been judged on the "Bolam test" (named after a clinical negligence case in 1957).
The test considers how other healthcare practitioners would have acted given the same circumstances. The courts have also recently developed more flexible assessments - allowing them to interpret negligence claims against other criteria such as NICE (National Institute of Health and Care Excellence) guidelines.
Compensation may only be claimed if it can be demonstrated that ‘on the balance of probability' the treatment was carried out negligently, meaning the care received fell below medically acceptable standards and this failing directly caused the injury.
Examples of clinical negligence claims include injuries due to a healthcare provider:
- Misdiagnosis claims
- Surgical procedure negligence claims
- Administering the wrong medication or wrong dose
- Failing to warn about the risks of treatment
- Failing to get a patient's informed consent to the treatment
Some injuries that occur through medical treatment may be referred to as ‘medical accidents' or ‘patient safety incidents'. Injury in such cases may or may not be due to the treatment being negligent, however, and will depend on the circumstances of the case.
Taking legal action against an NHS Trust for clinical negligence
Anyone injured as a result of negligent medical treatment may be able to take legal action for compensation. A claimant may also be able to take legal action for compensation on someone else's behalf where:
- the injured person has died as a result of the negligent medical treatment
- the injured person does not have the capacity to take legal action for themselves
Many people are reluctant to launch a claim against the NHS. However, a patient who has sustained an injury caused by the negligence of someone working in the NHS has a right to be compensated for any losses incurred as a result.
Do I have a NHS negligence claim?
Medical negligence claims differ from personal injury claims as the following will need to be established:
- there was a breach of duty ("negligence" or "fault"); and
- the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").
Breach of Duty
A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.
To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.
Get an impartial opinion
To get impartial advice on whether you have a claim, speak to a NHS negligence claim expert on 0800 612 7456.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
You can also find out if you have a claim with our Online Claim Checker.
Is compensation always payable?
If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".
Not all treatment that results in an undesirable outcome will result in the payment of compensation.
Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances.
How long do I have to start a claim?
If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.
It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.
What if your injury was diagnosed months or years after treatment?
You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.
The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).
It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.
The amount of money you could claim for your NHS negligence will depend on:
- the extent of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your NHS negligence has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after a NHS negligence? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for a NHS negligence claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following a NHS negligence will depend entirely on your specific circumstances.
Your NHS negligence compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.
See the injury table above for some examples.
Will a clinical negligence claim affect my benefits?
It may. The receipt of a compensation award could affect the calculation of any means-tested benefits. One approach to protecting your benefits, would be to set up a "Personal Injury Trust" or "PI Trust". Read more: Should I set up a personal injury trust?
NHS negligence compensation
Calculating how much compensation you can claim for a NHS negligence injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your NHS negligence claim could be worth now:
How long does a NHS negligence claim take?
How long it can take to secure compensation for NHS negligence can vary significantly.
For example, a simple uncontested medical negligence claim can settle in 12 to 24 months. However, if court proceedings are necessary a compensation claim can take longer. Normally a medical negligence claim will take 12 to 36 months. See:How long will my claim take?
Will I still be able to claim for a NHS negligence after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Caring and sensitive support
Your solicitor will handle your NHS negligence claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
No win, no fee
'No win, no fee' means that if your NHS negligence claim is not successful, you will not have to pay your solicitor any money. Known as a 'Conditional Fee Agreement' or 'CFA', no win, no fee is a legal agreement between you and your solicitor.
Our no win, no fee guarantee
If you have been injured through no fault of your own, our no win, no fee guarantee takes the risk out of making a NHS negligence injury compensation claim.
What do I pay if I win my NHS negligence claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, after your claim is settled. The solicitor's success fee can be up to 25%. Your solicitor will agree a success fee with you before you start your claim.
What do I pay if I do not win my NHS negligence claim?
If your NHS negligence claim is not successful then you do not have to pay any legal fees whatsoever. Your solicitor may take out insurance to ensure there will be nothing to pay.
Is there a penalty if I withdraw?
Under a No Win, No Fee Agreement (CFA), fees may apply if a claimant refuses to cooperate, or abandons their claim after the legal work has started, or if the claim is fraudulent.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
if you can claim
to start a claim
NHS negligence FAQ's
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the solicitor panel are settled out of court.
Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are held in front of a judge, not a jury.
Will I have to go to a solicitor's office?
No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
Can I get an early compensation payment?
If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.
An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.
Read more about this Quittance Legal Expert