Can You Really Bring A Claim Against the NHS?
Introduction
One question we often get asked is, “Is it even worth bringing a claim against the NHS?”
Many patients who have suffered an injury through medical negligence express concerns that the NHS is simply too large to challenge, or that doctors may “close ranks.”
At JNP Legal, we are here to dispel those myths, explain the process clearly, and highlight why it is so important to seek legal advice as soon as possible if you believe you have a potential claim.
Who can bring a claim?
If the injured person is an adult, they can bring the claim themselves.
In the case of injured children, a Litigation Friend will be required to provide instructions on their behalf. Typically, a parent will act as the child’s Litigation Friend.
Where the injured party lacks the capacity to manage their own affairs, they will also require a Litigation Friend. This is often their spouse, a relative or the person who holds a Lasting Power of Attorney to manage their affairs. In some cases, a Court-appointed Deputy may act as the Litigation Friend.
If the injured person has sadly passed away, a representative of the estate will be required to provide instructions. This will be the Executor where a Will is in place, or a Court-appointed Administrator where the deceased died intestate.
What needs to be proven?
There is a two-strand liability test which applies to clinical negligence claims.
To succeed in recovering damages, the burden of proof is on the Claimant to establish that the treatment they received amounted to a breach of duty. This means demonstrating that no responsible body of practitioners would have acted in the same way as the Defendant at that relevant time. The treatment provided must also withstand logical scrutiny.
However, it is not sufficient to establish a breach of duty alone. The Claimant must also prove causation, that is, the extent of the harm which has, on the balance of probabilities, been caused as a result of the identified breach(es) of duty. In other words, the Claimant must demonstrate the full extent of the injury caused by those breaches.
Will doctors “close ranks”?
Independent expert evidence is obtained to address the question of liability.
Claimants are often reassured when they learn that the duty of the expert instructed is strictly to the Court, rather than to the party which has instructed them.
How much can I recover?
Damages can be broken down into two categories.
The first is general damages, which provide compensation for the injury itself.
The second category is referred to as special damages. This reflects the financial losses suffered by the Claimant, both in the past and those likely to be incurred in the future. This may include losses such as earnings, the cost of care and assistance, treatment expenses, and travel costs.
Are there time limits on when I can claim?
Court proceedings must usually be brought within three years from the date of the negligent treatment, or from the date on which the Claimant knew, or ought reasonably to have known, that the treatment was negligent.
Clinical negligence claims are complex, and it is often necessary to obtain evidence from several experts to fully investigate a claim.
Once the claim has been investigated, a Letter of Claim must be prepared, setting out the allegations of negligence to the Defendant. The Defendant will then carry out their own investigations, including obtaining expert evidence in response.
Given the timescales and the steps which are required before issuing Court proceedings, we strongly encourage anyone who believes they may have a clinical negligence claim to seek legal advice as soon as possible.
Funding a Clinical Negligent claim
There are several funding options available for clinical negligence claims:
Conditional Fee Agreement
The most common funding in clinical negligence claims is by way of a Conditional Fee Agreement (CFA), often referred to as a ‘no win, no fee’ agreement. If your claim is unsuccessful, you will not be required to pay our legal costs. If your claim is successful, a deduction will be made from your compensation to reflect our success fee. This is usually capped at a maximum of 25% of the damages recovered for your injury and past losses, and never exceed 100% of our basic charges.
CFAs are typically supported by an insurance policy which covers disbursements incurred during your case (such as expert fees). The premium for this policy is only payable if your claim succeeds and is usually deducted from your compensation.
Private paying
You choose to pay for our services directly. In this case, fees are charged on an hourly basis plus VAT, and you will also be responsible for funding any disbursements as they arise (for example, expert fees and Court fees).
Legal expenses insurance
You may already have an insurance policy that includes legal expenses cover, which could fund a clinical negligence claim. We can review your existing policies and advise whether suitable cover is available.
Damages-Based Agreements
In limited circumstances, a Damages-Based Agreement may be available. Under this arrangement, legal fees are calculated as a percentage of the compensation recovered.
Legal Aid
Legal Aid is now available only in very limited circumstances. Due to statutory changes, it is generally considered a last resort for funding clinical negligence claims.
Conclusion: seeking support after medical negligence
Experiencing an injury as a result of medical treatment can be overwhelming, particularly when it arises from a situation where you placed your trust in healthcare professionals. It is natural to feel uncertain about your options, and many people worry about the prospect of pursuing a claim against the NHS.
However, it is important to remember that the NHS is not beyond challenge. Holding healthcare providers accountable plays a vital role in improving standards and helping to prevent similar incidents from happening to others. With the right legal guidance, the process can be managed with clarity and confidence.
At JNP Legal, we have been supporting clients with medical negligence claims since 1981, providing practical, measured, and empathetic advice at every stage. Our experienced team understands the complexities involved and is here to guide you throughout the process.
If you are concerned that you may have a claim or would like to understand your options, our team is here to help.
Contact us today to arrange a confidential discussion and find out how we can support you.