Medical treatment is usually very good and the vast majority of people experience a favourable outcome. Unfortunately sometimes treatment can go wrong and this article aims to explain your options with regards to the right to complain and in some circumstances when legal action is appropriate. It concerns medical treatment which is provided by a wide range of health professionals such as Doctors, Nurses, Midwives, Dentists, and Opticians etc. Medical mistakes can include for example a failure to diagnose your condition, making a mistake during an operation or prescribing the wrong drug.
How can you complain?
It is important to understand that taking legal action is only about getting compensation. Other things, like an apology, might be more important to you. Also, you may need to make some inquiries about what happened to you before you know whether you would have a case for a legal claim. In my experience often the real issue is poor communication and whilst the patient feels that there has been a delay or a mistake during the course of their treatment, there is in fact an entirely reasonable explanation. It is therefore very sensible to firstly take advantage of the health organisation’s complaints procedure.If you were a private patient you should complain to the doctor who treated you or the hospital or clinic you attended. All private hospitals and clinics should have a complaints procedure. Normally a complaint will need to be provided in writing setting out a brief overview of what treatment you have received and why you are unhappy.If you want to complain about an NHS service such as a hospital, GP or dentist it is generally advisable to do this in writing. The time limit for a complaint is normally 12 months from the date the event happened, or 12 months from the date you first became aware of it. My experience is that the NHS will normally extend this deadline, provided it is still possible for them to complete a fair investigation. You will receive a written response setting out the findings and, where appropriate, apologies and information about what’s being done as a result of your complaint. It is important to remember that you are unable to seek compensation for any injuries you may have suffered or losses you have incurred. If you are not satisfied by the response you have the option to take your complaint to the Parliamentary and Health Service Ombudsman, which is independent of the NHS. If you are making a complaint but are also considering legal action in the future, it is very important that you do not allow your legal time limit to expire (which is discussed below).
Considering Legal Action
If you have already undertaken the complaints procedure (or would prefer not to) you can consider bringing a claim for Clinical Negligence. It is important to remember that even if you have suffered an injury as a result of medical treatment, this does not mean that your treatment was necessarily of a poor standard. You can only bring a successful claim if you can prove that your treatment was carried out negligently, that is, the care you received fell below medically acceptable standards, and this directly caused your injury. For example during surgery you may have sustained damage to an organ resulting in a very poor outcome. This may however have been a risk of the procedure and not caused by any lack of care by the surgeon. Alternatively because of a misdiagnosis you may have experienced a delay in treatment. Whilst any delay is to be avoided, you would also need to prove that the delay has resulted in an actual injury, for example that more invasive treatment was now required. There are complex legal tests which apply and you would therefore need expert advice to work out whether you have a claim. Therefore it is important that you obtain advice from a solicitor specialised in Clinical Negligence cases. If your solicitor advises you that you have grounds for a legal claim then funding will be arranged. If the solicitor is satisfied that the prospects of the case are sufficient normally they will agree to take the case on a No Win No Fee basis. The Solicitor will also need to take into account the likely value of the claim and, for example, if the injury has been minor and there have been no significant financial losses then it is unlikely that they would be able to accept the case on a No Win No Fee basis.
A solicitor will obtain the relevant medical records, a statement about what has happened and any other documents relevant to the case. If for example it is suspected there has been negligent treatment by a GP, then a GP expert would be instructed to consider the available evidence. The expert would be required to consider the standard of care and if failures are identified, what injuries, if any, have been caused by them. Sometimes more than one expert is required. If supportive medical evidence is obtained then a formal process commences with your solicitor sending a Letter of Claim setting out the allegations, details of the injuries and losses. Whilst Clinical Negligence cases can end up in Court, this is very rare because if there is a dispute the Parties will send each other their medical evidence and the experts would then meet to discuss any disagreements. Therefore in my experience it is very unlikely that your case would end up at a Trial, with you having to give evidence.
This can include any past losses plus any future losses and expenses likely to be incurred because of the injury and includes for example damages for injuries, loss of earnings, medical / care costs etc. If the case is about someone who died because of Clinical Negligence, certain people can claim bereavement damages of £11,800 and for the loss of their financial support (called ‘loss of dependency’).
There is usually a 3 year time limit for bringing a claim either from the date the negligence occurred or from when you became aware of the injury being caused by negligence. Different rules apply for fatal claims, children and those who lack capacity. Assessing the correct limitation date can be complicated and it is therefore important that specialist legal advice is obtained without delay.
Who Are We and How We Can Help
At Gregory Abrams Davidson we assist clients across the country in bringing claims against hospitals, dentists and GPs, both NHS and private. We offer a free initial assessment and ‘no win no fee’ arrangements on suitable claims. We have expertise in dealing with claims such as; missed or delayed diagnosis, surgery claims, cancer claims, child birth injuries, pressure sores, still birth / neo natal claims, fatal claims etc. Richard Malloy is a solicitor and Partner specialising in Clinical Negligence and Dental Negligence Claims and is based at their Penny Lane Office, Allerton.