By John Pickering of Irwin Mitchell

Every health professional owes a duty of care to their patients irrespective of whether that care was delivered in the NHS or in the private sector.

If a patient (Claimant) believes that he/she may have been the victim of a medical accident then the Claimant must bring his/her claim under the law of negligence.

For the Claimant to win his/her case, he/she must prove four things:

• The healthcare professional owed the Claimant a duty of care;
• That there was a breach of duty of care because the health professionals failed to reach the standard of practice required by law;
• That the injuries suffered by the Claimant were caused, or contributed materially to, the damage in question (commonly referred to as causation); and
• The consequences and effect of the damage.

Only if the Court is satisfied that all four issues have been proved will the Claimant succeed in his/her claim against the Defendant be it a Hospital Trust, Strategic Health Authority, General Practitioner, Dentist, or other health professional in private practice.

Claims are brought under the tort of negligence but where patients pay their health professionals for services rendered, there will be a contract, and therefore, the patient can sue in both negligence and contract.   

The NHS Complaints Procedure

If you have been the victim of a medical accident in either England or Wales and if you were receiving treatment under the National Health Service, these are the steps that you ought to take:

Seek an Explanation

If you feel that the treatment you have received has not had the desired outcome or you have suffered harm you did not expect, then ask those responsible for your treatment for an explanation. If you are satisfied with the explanation about what went wrong and how the matter can now be put right, you may not wish to take the matter any further.

Complaints System

If local resolution fails and if you have received treatment in the NHS, it is important that you make your complaint as soon as possible after the event because usually the NHS will only investigate complaints that are either made within 6 months of the event, or made within 6 months of realising that one has something to complain about as long as it is not more than 12 months after the event itself.

The complaint should be made to the Complaints Manager of the Hospital in which you received the treatment but if your complaint is about a family practitioner such as a General Practitioner, Dentist, Pharmacist or Optician you should contact the Complaints Manager at your local Primary Care Trust.

Under the Patient's Charter you have a right to receive a full written reply from the Chief Executive of a Trust to any written complaint within 20 working days. If there are good reasons for why this timescale cannot be achieved, you should be kept informed of the progress being made by the investigative team.

If you are unhappy about the outcome of the local resolution, you can then take your complaint to Independent Review. This should be done within 4 weeks of the date of the letter telling you the outcome of local resolution. If you are still dissatisfied after the NHS complaints procedure has been completed, you can ask the Health Service Commissioned (the Ombudsman) to investigate your case.

You may also contact the Patient's Advisory Services or your local Law Centre who will advise you on the best course of action and may assist you in making a complaint.

How to complain if you received treatment in the private sector

If you have been the victim of a medical accident in England and Wales and if you were treated in the private sector, these are the suggested steps that you ought to take:

Seek an Explanation

Some private Hospitals have their own complaints system. Their complaints policies can be found on their respective websites.

If you are unhappy about the facilities or the services provided by a Private Hospital, then make a complaint to the Ward Administrator before you leave the Hospital. If you have left the Hospital, then write a letter to the Hospital's General Manager setting out the details of your complaint including the names of the professionals who were caring for you and the Hospital's Department in which you were being treated. You may be invited to meet with the General Manager and staff to talk through your issues in an effort to resolve them.

Complaints System

If you are not happy with the response from the General Manager, you can appeal to the Managing Director who will review your complaint and offer any advice to attempt to resolve the matter.

As a final resort, you may take your complaint to Independent External Adjudication. Details will be provided by the Hospital's Managing Director as to what to do and where to send your correspondence.

As an alternative, you can complain directly to the National Care Standards Commission, the regulator of hospitals in England. Private Hospitals in Wales are regulated by the Care Standards Inspectorate for Wales.

Advertising Standards Authority

If you feel that you have been misled by a non-broadcast advertisement in the UK, you may lodge a complaint with the Advertising Standards Authority by completing their on-line complaints form, or by sending a letter to:

The Advertising Standards Authority
2 Torrington Place
London
WC1 7HW

You will need to send a copy of the advert, stating where and when it appeared. Also, send your name and address so that the complaint can be acknowledged. Complaints are investigated free of charge. The time limit for lodging your complaint is 3 months from the appearance of the advert in a newspaper, magazine, outdoor poster, cinema advertisement, an advertisement on the internet or a direct mail leaflet and/or brochure.

General Medical Council

If you have been the victim of “gross professional misconduct” (for example, sexual misconduct, research misconduct, dishonesty or care falling well below expected professional standards by a doctor), then you may wish to make a complaint to the General Medical Council who may accept your complaint which will be investigated on your behalf. This is a disciplinary procedure, which is designed to examine conduct, not negligence.

Human Rights Act

There may have been a breach of your fundamental rights under the Human Rights Act 1998, which incorporates into our law the European Convention on Human Rights. Article 3 of the Act relates to the Prohibition of Torture and states “no-one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Consult a specialist solicitor if you feel that you have a claim, which might include this or any other issue under the Human Rights Act 1998.

Seeking Redress Through the Tort of Negligence

Duty of Care

In general, where a patient is receiving treatment he/she is owed a duty of care by the health professional providing the treatment.

Breach of Duty

In most cases, the key question is whether or not the health professional acted properly when delivering care to the patient, now Claimant. Put another way, it begs the question as to whether the health professional has reached the standard of care required of him/her by the law of negligence.

That standard of care was established in a case called Bolam. The Bolam Test establishes the standard of care for all types of clinical negligence whether the allegation is of negligence by omission, a failure to advise, warn or diagnose or of negligence by commission.

The essence of the Bolam test is that professionals are judged against the standard of their peers.If experts from their profession are called to give evidence with regard to the Defendant's actions and those experts believe that the Defendant's actions lie within the range of acceptable practice, then the Defendant will succeed in a negligence action. Such practice is to be judged at the time of the incident and without the benefit of hindsight.

Investigating the Claim

If you wish to investigate a clinical negligence claim, you must contact an experienced Solicitor and ideally one who is on the Law Society's Clinical Negligence Panel or on the AVMA Panel.

Most firms that have clinical negligence practices offer a free first interview either in the office or over the phone.

During that interview, you can tell the Specialist Solicitor what has happened after which the Solicitor will give you an early view as to whether your claim merits legal investigation.

Should you wish to proceed with the investigation, your Solicitor will take a statement from you and from all factual witnesses who can contribute to the evidence surrounding the event. Your medical records will be obtained, sorted and considered very carefully. Appropriately qualified independent medical experts will then review your statements and the medical records and provide an opinion on breach of duty and causation.

After this, it is likely that your Solicitor will arrange a meeting with the experts and you to explore the issues raised by your medical accident after which a decision will be reached by all as to whether or not there is enough evidence to bring a claim against those who treated you. This meeting will also give you the opportunity to ask the experts questions about the manner in which you were treated and whether it contributed materially to your outcome.

If the experts think that your care was not negligent, then you will not be able to proceed with a claim against the health professional and/or NHS Trust.

Legal Action

If your claim has merits, then the next step is for your Solicitor to draft a document known as the Protocol Letter of Claim, which sets out the facts surrounding the events, the allegations of breach of duty and causation and Particulars of Injury.

This document is sent to the Defendant's Solicitors who then have 3 months within which to provide you with a Protocol Letter of Response. This reasoned Response will either make full admissions of negligence, partial admissions or no admissions at all.

If partial or no admissions are made, then it will be necessary to proceed to litigation where proceedings are issued and served on the Defendant who then reply by way of a Defence. The Court then sets a timetable for exchange of factual witness evidence and expert evidence and the timing of meetings of experts designed to narrow the issues in contention between the parties so that if the case goes to trial, only those issues that are important and relevant are tried before a Judge sitting alone without a jury.

In the past few years, more clinical negligence cases are being mediated before Court proceedings are started or post proceedings where mediation can take place at any time up to trial. If the outcome emerging from post proceedings mediation proves unacceptable, then you can continue with the litigation.

The vast majority of cases are settled before reaching Court. Some settlements are reached at the Courtroom door.If your case goes to trial, and if the Judge decides that you should be awarded compensation, then he/she will assess the level of damages that you should be awarded taking into consideration your pain, suffering and loss of amenity and other losses such as past or future loss of earnings, care delivered by a relative or friend, the cost of housing adaptation, aids and equipment and private treatment and so forth.

Legal Costs

You may be able to receive assistance with funding your clinical negligence claim through one of the following:

• Legal Expenses Insurance (may be provided through car insurance, household insurance, home contents insurance and so forth).
• Public Funding from the Legal Services Commission (formerly known as Legal Aid).
• Trade Union Legal Assistance.
• Private Funding.
• Conditional Fees (may be available after preliminary investigations).

It is important that you seek free legal advice first before making a decision against making a claim on the grounds of legal costs.

You need only be concerned of your legal costs if you lose your case. If you succeed in your claim, then the majority of your legal costs will be met by the Defendant. Therefore even if you have to privately fund your claim, you may find that you still recover your costs if your claim is successful.

Very few Solicitors specialise in clinical negligence claims. It is therefore crucial that you seek out Solicitors who really understand the work they are doing and what you want from your investigations.

Beware!

If you believe that you were a victim of medical negligence, then it is important that you seek advice quickly and as soon after the event as possible.

The Limitation Act 1980 imposes time limits on when claims can be brought. If an adult (18 years or over), you have three years from the date of the accident or three years from the date of knowledge, if later, to issue proceedings in Court. A failure to conform to these time limits will mean that your claim is out of time for bringing a claim.

Whilst these time limits are generally strictly adhered to by the Courts, it is still worthwhile to seek legal advice if your claim is out of time because the Court has the power to use its discretion in certain cases to allow a claim to be brought even though it is out of time. However, seek advice without delay because the sooner you proceed, the better chance you have of persuading the Court to allow you to bring your claim even though you have missed the statutory three year limitation period.