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Suing the NHS

Should I Sue The NHS For Medical Negligence?9th Feb 2022

by David Simpson on 9th Feb 2022

Contact David Simpson

Is There An Alternative To Suing The NHS?

Sadly not. Nobody wants to sue the NHS. But often the victims of medical negligence have no choice. NHS errors rob people of their livelihoods as well as their quality of life.

So without work or sufficient savings, victims have no alternative but to claim compensation to recover damages for their injuries and loss of earnings – and to fund the costly care, equipment and rehabilitation they require.

However, if you only require answers or an apology – rather than monetary compensation – then you may wish to pursue a complaint via PALS or the Health Service Ombudsman. A case of serious error or misconduct may justify a report the General Medical Council (GMC).

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How Much Is Clinical Negligence Costing The NHS?

You would expect the cost of compensation claims against the NHS to be rising because:

  • clinicians are under ever-greater pressure
  • the UK population is growing
  • medical negligence claims receive significant media coverage.

But you may be surprised to learn that – in reality – the cost of claims against the NHS actually fell in 2020/2021.

The cost was £114.9 million lower than in the previous 12 months, according to data from NHS Resolution (an “arm’s length body of the Department of Health and Social Care”. It helps the NHS to resolve concerns and disputes fairly.)

Why Medical Negligence Victims Sue The NHS

The aim of medical negligence litigation is not to punish the NHS or the individual doctors concerned. It is to help the victim get their life back to the way it was before the NHS injured them. The purpose is restorative, it is never a ‘windfall’ – victims would always prefer that the harm caused had never happened in the first place.

So the compensation funds care and rehabilitation to help them cope as best they can. For a child who suffers a severe and avoidable brain injury at birth, it means a lifetime of round-the-clock care, equipment and living in specially adapted accommodation.

Getting a compensation payout is not like winning the lottery and should never be compared with this.

As one negligence victim said: “I think the most important thing to understand is that, if there has been a miscarriage of justice, people have been failed in their health…they’re going to need…not just wheelchairs and things (and) adaptions around the house but maybe the loss of earnings for the rest of their life.

“We’re not naming and shaming or anything like that, but someone is still at fault. It is your health, your life,” they said, as quoted in a research study for the Association of Personal Injury Lawyers (APIL).

As a solicitor, one always hopes that the NHS might learn from its mistakes to prevent them from happening to other families. Sadly, experience has shown that it seldom does. Our medical negligence lawyers see the NHS making the same errors over and over again.

Sometimes the NHS admits liability early on, but sometimes it closes ranks and tries to defend the indefensible.

Reducing Harm To Patients

There is a very simple way to reduce the cost of medical negligence to the NHS: stop injuring patients.

However, the current approach to patient safety is highly fragmented with numerous strategy documents and frameworks – alongside the work of bodies such as the Care Quality Commission, the Healthcare Safety Investigation Branch, the Royal Colleges, various public inquiries into NHS failings, along with recommendations from the Parliamentary and Health Service Ombudsman.

The number of incidents increased by 2% between 2010/11 and 2019/20. That compares with a 7.08% increase in the UK population between 2010 and 2020.

Comparing those headline figures suggests that safety is improving. We hope so – improvements to patient safety cannot come too soon.

It is the NHS systems that must change. The August 2013 Berwick Report into patient safety said: “NHS staff are not to blame – in the vast majority of cases it is the systems, procedures, conditions, environment and constraints they face that lead to patient safety problems.”

So you are not suing the doctors and nurses. You are suing the bureaucrats and managers whose systems failed the clinicians – as surely as those systems failed you.

“The Healthcare System…Is Disjointed, Siloed, Unresponsive and Defensive.”

Those are the words of Baroness Cumberlege in First Do No Harm, the report of the Independent Medicines and Medical Devices Safety Review.

Baroness Cumberlege said the healthcare system “does not adequately recognise that patients are its raison d’être. It has failed to listen to their concerns and when, belatedly, it has decided to act it has too often moved glacially.

“Indeed, over these two years, we have found ourselves in the position of recommending, encouraging and urging the system to take action that should have been taken long ago. The system is not good enough at spotting trends in practice and outcomes that give rise to safety concerns.

“Listening to patients is pivotal to that.”

NHS Professionals’ Duty Of Candour

All NHS professionals have a duty to be honest and open with patients when something goes wrong. They must tell a patient when something has gone wrong, apologise, provide a full explanation and offer a remedy or support where possible.

But that duty of candour is rarely applied, says APIL. Clinicians struggle to engage with patients or are told not to do so by health trusts’ legal teams.

Dr Bill Kirkup, chair of the independent investigation into East Kent maternity services, highlighted the issue in a keynote speech at an event organised by patient safety charities Harmed Patients Alliance and Baby Lifeline.

Dr Kirkup said that – once health trusts’ legal teams got involved – they would often delay and obfuscate as much as possible.

Sir Robert Francis QC (whose work included chairing the two Mid-Staffordshire NHS Foundation Trust inquiries), said that in his experience “so many victims wanted but were denied honest explanations, appropriate apologies and timely support for their needs.”

And he too highlighted the NHS’s lack of learning from complaints.

APIL: ‘NHS Fear And Blame Culture Puts Patient Safety At Risk’

The British Medical Association highlighted the issue of blame in a research report in 2018.

APIL said: “The BMA’s survey findings show clearly that a culture of fear and blame persists in the NHS.

“This is a risk for patient safety, prevents people from being open about errors, learning from mistakes and contributing to continual improvement.

“Patient safety in our health service is of paramount importance – so it is of considerable importance that many doctors (55%) are reporting that they fear being unfairly blamed for errors due to systemic failures.” 

Evidence Given To A Parliamentary Select Committee Inquiry

In January 2022, APIL gave evidence to a Parliamentary select committee holding an inquiry into the reform of NHS litigation. It followed the submission of written evidence last year.

In that written evidence, APIL said: “The concern of our members is for those who have been injured or killed while receiving NHS care.

“Behind every media headline on this subject are people whose lives have been turned upside down by an institution which is supposed to have helped them.

“When the worst happens, those patients must have the support they need to get their lives back on track.”  

“Betrayed By The NHS”: Cover-Ups, Fabricated Medical Records

In its evidence to the select committee, APIL quoted Opinium Research’s Value of Compensation report which revealed that most NHS trusts were not open about their errors.

A few patients said the NHS had been very upfront about what had gone wrong…with consultants even recommending that the patient took legal action.

“However, most (patients) had a much less open experience. In the worst cases, NHS staff had tried to proactively cover up the errors that had been made. Some (patients) reported that medical staff had lied about the events and even fabricated medical records.”

Some patients “felt betrayed by the NHS.”

Working Collaboratively To Help Negligence Victims

There has been a growth in collaborative work between victims’ solicitors and NHS Resolution. APIL describes this as “extremely encouraging” because it lowers the cost to the NHS – without affecting patients’ full and fair compensation payouts.

The message is clear: if the NHS wants to reduce its legal bill, it should be more honest about its mistakes and reach settlements earlier. Less public money would be spent on NHS lawyers.

At Coles Miller, our medical negligence solicitors have a good track record when it comes to:

  • securing early admissions of liability from the NHS
  • getting the NHS to make interim payments for care and rehabilitation until the full extent and impact of a victim’s injuries can be determined.

Have You Been Injured? Get Expert Legal Help

Have you suffered injuries as a result of negligence by the NHS or other healthcare clinicians? 

Find out how you can claim compensation using a No Win, No Fee agreement, so there is no financial risk to you. Furthermore, 99% of our claims are settled without the need to go to court.

Contact Coles Miller Partner David Simpson, who leads our team of medical negligence solicitors. He is based at our Poole head office.

This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.