Medical Negligence Making a Complaint

What are your rights and responsibilities as a patient?

You have a number of rights and responsibilities as a patient. These are often provided in written information. For example, for the NHS in England:

• You have the right to register with a GP if you live within the GP's catchment area, even if you come from abroad.
• You are entitled to treatment from a GP at the surgery where you are registered. However, you have no automatic right to see your own GP.
• If you are violent or abusive to NHS staff, you may be refused NHS hospital treatment, or given a verbal or written warning before treatment is withheld or withdrawn.
• You cannot receive NHS hospital treatment without being referred by your GP, unless you are attending a special clinic (eg, a sexually transmitted infection clinic), or you need emergency medical attention.
• You have the right to choose a particular team headed by a named consultant for your first outpatient appointment, provided that the doctor referring you agrees that your choice is clinically appropriate.
• If you go into an A&E department, you should be assessed immediately. Staff will try to make sure you do not wait more than four hours before admission to hospital, treatment or discharge from A&E. However, this time limit is only a guideline.
• If something goes wrong during your treatment, which leads to significant physical or psychological harm or death, the NHS provider must do the following, and failure to do so might entitle you to make a formal complaint:
• Tell you or your representative in person about the incident, as soon as possible after it happened.
• Tell you what will be done to put things right.
• Apologise to you.
• Give you a written record of this information and keep records of further communication with you.
• Provide any other support you may reasonably need.

For more information about patient rights and responsibilities, see the Further Reading links below.

How can you make a complaint about your treatment?

There are several different options for complaining about your treatment.

• The first option is often to use the complaints procedure of the hospital or general practice surgery where you were treated.
• Alternatively, you can contact the Health Service Ombudsman or the regulatory body of the professional involved.
• You may also consider contacting a solicitor in order to take legal action.

You don't have to make a complaint directly to the Health Service before starting legal action. However, making a complaint first will help you to find out more about what has happened. You can then make a more informed decision about whether to go ahead with a legal claim for medical negligence. Making a complaint will not prevent you from making a legal claim for compensation.The best first step is usually to write to the GP or hospital to ask for an explanation about the care that you or your loved-one received.

There are several options to make a complaint about Health Services. One option is to use the Health Service's own complaints procedure. Alternatively, you may be able to report your concerns to a different organisation - for example, an Ombudsman or the regulatory body of the professional involved. The Citizens Advice Bureau provides information about making a complaint. There is also a complaints process for people in England, Scotland, Wales and Northern Ireland.

You should make your complaint as soon as possible. Complaints should normally be made within 12 months of the date of the event that you're complaining about, or as soon as you find out about the problem. The time limit can sometimes be extended but only if it's still possible to investigate the complaint. The time limit can be extended if it is clear that you were unable to make the complaint at an earlier time.

Parliamentary and Health Service Ombudsman

The Ombudsman is independent and can make final decisions on complaints that have not been resolved by the Health Service. You can complain to the Ombudsman if you believe there has been injustice or hardship because the Health Service:

• Has not acted properly.
• Has not acted fairly.
• Has given you a poor service and not put things right.

There is a separate Health Service Ombudsman for England, Scotland, Wales and Northern Ireland.

Governing bodies for health professionals

The relevant governing body for doctors (GPs and hospital doctors) in the UK is the General Medical Council (GMC). You can make a complaint against a GP by contacting the GMC or by contacting your local Clinical Commissioning Group (CCG). The governing body that regulates nurses and midwives is the Nursing and Midwifery Council.

The governing body will investigate your complaint to see if the health professional is putting patients at risk. The investigation may well clear the health professional if no concerns are found. However, if there is found to be a risk to patients then the health professional may be restricted from treating patients while they receive further training.

Serious concerns about the health professional may even result in them being unable to treat patients ever again. This is sometimes called being 'struck off' the register.

A complaint to the governing body is different from a legal claim for negligence and will not result in any financial compensation.

See the Further Reading section below for links to more information about your options.

What is medical negligence?

The vast majority of people in the UK are treated with very good care and are very happy with their treatment. However, occasionally things can go wrong. This is often because the treatment has not been effective despite a high standard of care. However, it may be that the care you were provided with fell below the expected standard and caused you harm.

Medical negligence (also called clinical negligence) is the failure to provide you with adequate and appropriate care that results in you suffering harm as a result of this failure. The failure to provide adequate and appropriate care is called a breach of duty. Medical negligence is concerned with claims against doctors or other healthcare professionals.

To prove medical negligence you must show that there was a failure to provide you with reasonable care AND that this failure caused you to suffer harm as a result of the care you received.

The legal test often used for medical negligence is known as the Bolam Test. This states that a medical professional is not guilty of negligence if he/she has acted in the same way as any competent similar medical professional. For example, a GP has not been guilty of medical negligence if it can be shown that most GPs would have treated you in the same way.

However, the Bolam Test doesn't cover all situations of care. For example, a medical practitioner may be found to be negligent if they do not provide you with enough information about the possible risks of treatment - eg, a medicine or surgical operation.

Therefore, examples of situations where there might have been medical negligence may include:

• Failure to diagnose your condition or making the wrong diagnosis.
• Making a mistake during a procedure or operation.
• Prescribing you the wrong medicine or the wrong dose of a medicine.
• Not providing you with correct and sufficient information to be properly informed of the possible side-effects of a medicine or the risks of a surgical operation.

You can also take legal action for compensation if you are the closest relative (next of kin) of someone:

• Who has died because of negligent medical treatment.
• Who can't take legal action themself - eg, if they have dementia.

If you're the parent of a child aged under 16 years, you can make a complaint for them if the child is unable to make the complaint themself. Even if the child can make the complaint, you can still make the complaint for them as long as the child gives you permission.

If you are thinking about taking legal action about medical negligence, you should obtain specialist legal advice as soon as possible (see below).

How can you make a legal claim for compensation?

If you are considering making a legal claim for compensation then you should contact a solicitor to discuss your case and the chances of making a successful claim. You should see a solicitor who specialises in medical negligence cases. There are two recognised panels of specialist medical negligence solicitors. One is run by Action against Medical Accidents and the other is run by The Law Society.

Although a complaint should usually be made within 12 months, there is a three-year time limit (from the time you become aware of the medical negligence) to make a legal claim for compensation. However, if a person who has been affected by medical negligence is aged under 18 years at the time, the three-year limit starts on their 18th birthday. If a person has had a mental illness, they have three years from the time of their recovery from this mental illness to make a claim.

If you do make a claim for medical negligence it is very unlikely that you will need to go to court. Most cases are settled without going to court. Fewer than 2 in every 100 cases handled by the National Health Service (NHS) in England end up in court. The rest are settled out of court or dropped by the claimant.

You can claim compensation for any injuries or losses suffered which were a direct result of the negligent treatment you received. This may include:

• Compensation for pain and suffering.
• Payment for ongoing treatment.
• Compensation if you can't carry out certain activities or hobbies.
• Loss of earnings.
• The cost of any extra care or equipment you may need.
• The cost of adapting your home.
• Compensation for psychological damage.

How do you pay for a legal claim?

There are different ways to fund your legal claim. It is essential for your solicitor to explain the different methods of funding so that you can decide what is best for you. Different firms of solicitors have different arrangements for their clients to pay for legal expenses, and insurance to protect you from costs if you lose your case.

Legal aid to cover medical negligence claims has not been available since April 2013. However, there is still limited public funding for some cases involving children. The different ways to fund a medical negligence claim include:

• Legal expenses insurance. There are some insurance policies (for example, house insurance policies) that include legal expenses cover which could be used to pay for a medical negligence claim.
• Conditional fee agreements ('No-Win-No-Fee'):
• This means that you won't have to pay your solicitor's fees if you don't win the case.
• However, if you win your case, the firm of solicitors will take off a percentage of your compensation as its success fee.
• If you lose your case, you may have to pay the other side's legal costs.
• 'After-the-event' insurance. You may be advised to take out insurance to protect you from the possibility of having to pay the other side's costs if you lose the case.

These are all complicated agreements and you must read the small print carefully before you sign.