UK Clinical Negligence - What Every Patient Should Know





Almost 20% of the NHS budget is spent on settling UK clinical negligence compensation claims. Over £1,000,000,000 (yes that’s £1 Billion) of your hard earned taxed money goes on paying healthcare providers negligence bills almost every year. Current potential overall liability for all outstanding claims against the NHS for medical negligence is estimated at over £20,000,000,000 (£20 Billion). Over 10,000 patients currently lodge claims annually against the NHS and private healthcare providers including residential care homes. The current spend on NHS damages awards is double what it was 5 years ago. The highest pay-outs which include at least one pay-out exceeding £6,000,000 frequently exceed £1,000,000 usually relate to serious birth injury cases including cerebral palsy, Erbs palsy and brachial plexus palsy, any one of which can cause severe disability to a child. In the past, most high value claims were against doctors and consultants working in a hospital environment however UK medical negligence claims against GP’s have soared of late and reached unprecedented levels. Whilst general practitioners make up only 25% of doctors they are the target of 45% of complaints against NHS workers.

Unreasonable Denials of Liability

Medical insurers almost NEVER accept liability and most substantial cases have to be litigated in a court of law even when there is very strong evidence of negligence. The effect of this is to jack up the final bill to totally unacceptable levels and in defended cases the legal bill often exceeds the amount of the award of damages. On average about one quarter of the sums awarded are for legal cost incurred because insurers are very reluctant to accept that they are responsible for their insured doctor’s maltreatment of patients. The Solicitor has no alternative other than to pursue most potential claims in a court of law incurring unnecessary legal costs. The insurers do this in the hope that either the solicitor or client will blink and back down when faced with legal charges including the risk of an order to pay the other sides costs. This is often an effective denial of justice and a further erosion of patients rights. Medical insurers surely celebrated on the day that the government effectively terminated legal aid for UK medical negligence cases except for a small category involving children.

Unnecessary Deaths?

Every year over 8,000 next of kin take action against the NHS for the death of a relative caused as a result of clinical errors by doctors however this figure may just be the tip of the iceberg because it appears that legal action is not taken by the majority of wronged families. There are very high numbers of avoidable deaths that actually take place within an NHS environment. In addition to those patients who die there may be as many as 25,000 who suffer from permanent disability as a result of errors. Tens of thousands of other patients are hospitalised ever year as a result of medication errors.

Money Hungry Claimants?

Most claimants are not money hungry but they do want an acknowledgement from the NHS that they have suffered harm. The existing complaints process is rejected by many as being inadequate. The NHS is not generous in offering apologies relating to wrongdoing. Claimants often say that their main objective is to get an acknowledgement that the clinical treatment was wrong, in error or inadequate. It is accepted that deaths occurring whilst in medical care are not all due to errors however it is expected that a doctor should take reasonable care when compared to other similarly qualified doctor working in a similar environment.

Reasonable Care and Nothing More

Most medical errors cannot be described as "negligent". To fall into that category a strict legal definition must be applied to the circumstances of the injury. Just because there is a bad outcome from treatment does not necessarily imply that there was negligence. To call treatment negligent requires the healthcare provider to have provided treatment that did not pass the test of “reasonable care”. The law does not require a doctor to deal with patients “perfectly” but does require the doctor to achieve the standard of care that other similarly qualified doctor practising in a similar environment are able to achieve. Furthermore it must be proved that the patient’s condition was directly connected to the injurious treatment which is often a difficult proposition due the otherwise failing health of an ill patient. The underlying condition must be filtered out of the damage caused by the negligent treatment prior to establishing a value for the compensation claim.

Patients’ Rights Are Taken Away

With the virtual elimination of Legal Aid for UK medical negligence, patients’ rights have been taken away. Legal aid is no longer available for most medical negligence cases. The pursuit of these compensation claims now depends on solicitors to finance them and it is the solicitor who takes a high financial risk under the No Win No Fee scheme. If the case is lost the lawyer doesn’t get paid and furthermore may lose the expenses that have been paid out as disbursements. The commercial reality is that lawyers only take on cases which they believe have a good chance of winning leaving those with the more uncertain outcomes with no legal representation. This means that getting a lawyer to take on a medical negligence claim has become more difficult. If it wasn't for lawyers taking on the financial risks of running a clinical negligence case, most UK citizens would not be able to afford to pursue their rights.



Clinical Negligence Infographic



Info-graphic courtesy of Blackwater Law


Our clinical negligence solicitors finance clinical compensation claims for personal injury using the no win no fee scheme or where appropriate apply for public funding otherwise known as Legal Aid.

Almost all children and those adults on low income are eligible for Legal Aid. In the case of a minor (that is someone under the age of 18 years) who is supported by parents, only the income of the minor is considered in the financial assessment notwithstanding that the parents may have substantial income or assets.

A clinical negligence compensation claim is a type of personal injury compensation claim which has different legal protocols and is dealt with in court using special rules applicable only to clinical negligence cases which is why you should instruct an experienced clinical negligence solicitor to deal with your case. Most solicitors do not have the skill or expertise to deal with clinical negligence compensation claims.

In a clinical negligence compensation claim it is necessary to show that the defendant owed the claimant a duty of care and that the duty was breached causing damage. A doctor/patent relationship establishes the duty of care and to prove breach it is necessary to show that the doctor acted in a way that a substantial body of other similarly qualified medical professionals would not have acted provided that their course of action was logical. The most difficult part of a clinical negligence case is linking the illness or damage suffered by the patient to the doctors alleged negligence bearing in mind that the patient was already ill prior to the doctors intervention.

Our solicitors offer free advice without further obligation. Just call the helpline to speak to a lawyer.