The Step by Step Process of Claiming Against the NHS
All medical negligence claims must follow what is known as the Pre-Action Protocol.
This has eight 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 firstname.lastname@example.org 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:
- What injuries you have from the negligent treatment
- If you have had to spend more money because of your injuries, or have lost earnings because you can’t go back to work
- Details of any pain and suffering you have experienced
- Your solicitor may need to look at your medical records. They will either ask you to give them a copy of your records (if you have them) or will request your written permission so they can access them.
Your solicitor can 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 need to consult with a medical expert.
- Your solicitor will then prepare a Letter of Notification.
This is sent to the NHS Trust or the treatment provider who caused you harm, and to the NHSLA.
What is the Letter of Notification?
The letter of notification is a warning that a letter of claim (the document that must be responded to in order to settle the claim) will be sent. It is a notification that the NHS should begin its own investigations.
When the NHS Resolution receives the letter it will:
- Acknowledge it has 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 it should start its own investigations to obtain evidence
- Consider whether any information could be passed to the claimant that could alter the issue or lead to an early resolution
- The solicitor then sends aLetter of Claim (or sometimes known as a "letter before action").
It is sent to the relevant NHS trust or the treatment provider who caused you harm, and NHS Resolution.
What's in the Letter of Claim?
- A summary of the facts of your case
- Details of your injuries, present condition and diagnosis
- 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 NHS Resolution will then 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 or not 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 who are involved in the claim
- 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 you continue to court proceedings.
One result of ADR can be a Part 36 Offer. This is an offer of a settlement to prevent the case going to court.
- If a settlement cannot be reached, court proceedings will occur. You have a certain amount of time to decide whether or not you want to pursue court proceedings, but if this time exceeds six months, your solicitor must let the defendant (the NHS Trust or treatment provider) know what you are doing.
What is NHS Resolution?
Claims made against the NHS are usually handled by the NHS Resolution, so it's the NHS Resolution that will compile the Letter of Response and proceed with investigations into the claim. It will be the body that participates in ADR or appears in court, if necessary.
- Pre-Action Protocol for the Resolution of Clinical Disputes
- Clinical negligence in the NHS - taking legal action
- Negligence in the Hospital – Our Service
- Negligence at the GP – Our Service
- How to Make a Complaint Against the NHS
- NHS Complaints Letters – Sample Templates