How Does Claiming Against the NHS Work
The process for claiming against the NHS isn't wildly different from claiming against a private practice. Some claimants might want to pursue a formal complaint with the NHS prior to their claim or alongside it. The complaints procedure will not lead to a compensation claim, but you are not prevented from making a subsequent claim if you have already made a complaint.
In some rare instances you might be prevented from continuing with your complaint if you are suing the NHS at the same time. This will only occur if the complaint is deemed to interfere with the legal proceedings.
Find how clinical negligence is proved take a look at our page on the subject
- You have to start your claim within three years from when it has been realised that negligence has occurred. This means that sometimes you will be able to claim even if the actual event occurred more than three years ago. The rules are different for children and people who cannot claim on their own because of disability
- The NHS Litigation Authority (NHS LA) will pay your compensation
- Claims will normally take at minimum a year but can take a lot longer depending on how complicated your case is
All medical negligence claims must follow what is known as the Pre-Action Protocol. This has five main stages to it:
Make first contact to start pursuing a claim (if you want to get in touch with Negligence Claimline use our contact form, email us at email@example.com or give us a ring on 0330 355 9210).
If our solicitors think you might have a case they will get back in touch with you for further details. They'll ask you things like:
- How the treatment or alleged negligence has affected you
- If you have had to spend more money because of it or lost earnings
- Details of any pain and suffering you have subsequently experienced
Your solicitor may need to look at your medical records. if they do they will either ask you to hand over a copy of your records (if you have them), or will request your written permission to access them. Your solicitor should be able to give you a template (similar to the one below) for you to sign so that you can give your permission. If necessary your solicitor may also need to consult with a medical expert.
Your solicitor will then prepare a Letter of Notification which will be sent to the NHS Trust or treatment provider in question and to the NHSLA. The letter of notification is a warning that a letter of claim will be sent (which is the document that must be responded to in order to settle the claim) and a notification that the NHS should begin their own investigations. When a defendant (the trust or provider and the NHSLA) receive the letter they will:
- Acknowledge they have received the letter within 14 days of receiving it
- Identify who will be dealing with the matter and nominate who the Letter of Claim should be sent to
- Consider whether they should start their own investigations to obtain evidence
- Consider whether any information could be passed to the claimant which could alter the issue or lead to an early resolution
Once the solicitor has gathered the necessary information and sent a letter of notification they will compile something called a Letter of Claim (or sometimes a "letter before action") that will be sent to the relevant NHS trust or treatment provider and the NHS Litigation Authority.
What's in the Letter of Claim?
- A summary of the facts of your case
- Details of your injuries, present condition and prognosis
- Details of financial loss (with details of something known as "heads of damage")
- If possible, copies of any documentation referred to, for example specific medical records
- In some instances, an "offer to settle" which is a specification of the exact amount of compensation you would like to receive
The healthcare provider and NHSLA will confirm they have received the letter in two weeks and provide a Letter of Response within four months of receiving the first letter.
What's in the Letter of Response?
If the claim is admitted:
- Clear acknowledgement that the claim is admitted
- If only part of the claim is admitted, a clear explanation of which negligence is admitted, which is denied and why
- A statement of whether the admissions are binding
- If an offer to settle has been made in the Letter of Claim, the Letter of Response should reply to this
- If no offer to settle has been made, the Letter of Response can include an offer
If the claim is denied:
- Specific comments on the allegations of negligence, and if the details of the actual events are disputed, an alternative version of events
- Any requests for copies of medical records that have not been supplied and are needed
- Copies of any additional documents relied on as evidence for the denial
- If the defendant isn't insured with the NHS, details of the relevant indemnity insurer
- If applicable, the names of other potential defendants that are involved in the claim
Since court proceedings should be a last resort, if the claim is denied alternative dispute resolution (ADR) should be considered, though you cannot be forced to engage in this.
ADR can take the form of:
- Discussion and negotiation which may include providing an explanation and/or apology
- Mediation, with a third party facilitating a resolution
- Arbitration, where a third party decides how the dispute will be resolved
- Early neutral evaluation, where a third party gives an informed opinion on the dispute
- Ombudsmen schemes
You don't have to use ADR, but if you don't participate your reluctance might be considered unreasonable by a court, if court proceedings occur.
If a settlement cannot be reached, court proceedings will occur. You have a certain amount of time to decide whether you want to pursue court proceedings, but if this time exceeds six months, you must let the defendant know what you are doing.
Who are the NHS Litigation Authority?
Claims made against the NHS are usually handled by the NHSLA, so it's the NHSLA that will compile the Letter of Response and proceed with investigations into the claim. They will also be the body that participates in ADR or appears in court, if necessary. To find out more about the NHSLA visit their site: http://www.nhsla.com/.