When Things Go Wrong - Problems with Healthcare in the UK

Health professionals working in the NHS are expected to listen to patients, respond to their questions, and explain about their illness and treatment to the best of their ability. Most of the time, they provide the right advice, treatment and care and you can talk to them directly. Meningitis Research Foundation helpline staff can also help you understand the illness and its potential consequences and answer general questions about treatment. But sometimes you may need to talk to someone employed especially to help you in your local NHS organisation. The Patient Advice and Liaison Service (PALS) (see Help with Complaints), is there to help deal with concerns or problems for people using the NHS in England, and to ensure that NHS staff listen to patients, their relatives, carers and friends, answer their questions and resolve any issues as quickly as possible.

Different organisations have responsibility for patient advocacy in Scotland, Wales and Northern Ireland (see Help with Complaints

If you are unhappy with the service you or a loved one has received from a hospital, doctor, local surgery or any other NHS service, it is your right to make a complaint. You may be concerned about quality of care, or other things like unacceptable delays in treatment or lack of communication.

Raising your concerns should help put things right quickly and the NHS can learn from your experience. This could include an explanation, an apology and information about how the hospital or surgery has used your experience to improve services or care.

The NHS Complaints Procedure is set out by the Department of Health. Different NHS organisations run their complaints procedures in different ways but the same basic stages apply across the UK.

If you believe that you or a loved one has had poor treatment, or unacceptably delayed treatment, which could have led to injury or even death, then you have the right to investigate whether there has been negligence. Clinical or medical negligence occurs when a doctor or nurse fails in some way in their duty of care for a patient. A claim is the process of applying for compensation when there has been injury due to poor or substandard medical treatment.

Making a complaint

If you are unhappy with the care or treatment you or your child has received from a hospital, doctor or other healthcare provider, or you've been refused treatment, then you have the right to complain, have your complaint investigated, and receive a full and prompt reply. Complaining can be a very useful process and may help you to understand why a particular course of action was taken. It is usually the best course of action if what you are seeking is an open explanation of what went wrong or an apology. Making a complaint can be beneficial to both parties, as it should provide answers or explanations for you as the complainant, and will highlight any problem areas for the organisation that you are complaining about. This could allow steps to be taken to improve services for other users.

Why complain?

It is important to think about your objective before putting in your complaint. If you are mainly concerned about having something put right or registering a concern informally, it may be best to raise this directly with staff concerned or their managers, or you can ask to speak to a patient advocate such as PALS or their counterpart services in Scotland, Wales and Northern Ireland

Making a complaint is different from making a clinical negligence claim. (see Frequently Asked Questions). In a clinical case you are asking for money to compensate for injury or death.

Every NHS organisation has a complaints procedure, and these may differ somewhat depending on whether they are in England, Wales, Scotland or Northern Ireland. If you want to make a formal complaint about an NHS service, ask the service for a copy of their complaints procedure which will explain what you need to do. Before complaining, make a note of the relevant events, dates, times, names and conversations to help you to remember all the details in the future.

Timing

Time limits vary across the UK;

• In England and Wales a complaint should be made within 12 months of the event, or of realising there was an issue you want to complain about.
• In Northern Ireland the time limit is 6 months.
• In Scotland a complaint should be made within 6 months of the event or of realising there was an issue to complain about, but not longer than within 12 months after the event. If there are reasons why you couldn’t make the complaint within the specified period, the time limit may be extended, but it is best to act as quickly as you can.

There are two stages to the complaints process:

1. Local resolution is the first stage of the NHS complaints procedure. Most cases are resolved at this stage. Once a complaint has been made, you should receive an acknowledgement within three days. The organisation you have complained to must offer to contact you to discuss your complaint and arrange a plan to resolve your concerns with you. They should also agree with you a time frame for resolving the issues and should keep you regularly updated as to progress.

If your complaint is upheld, the organisation should offer an apology, and undertake to improve services to prevent the same problem happening in the future. If you are not satisfied with the response to your complaint you have the right to ask for an independent review by the Health Service Ombudsman.

2. Independent Review by the Health Service Ombudsman
You have the right to take your complaint to the Health Service Ombudsman, if you are not satisfied with the results of Local Resolution, or more than 6 months have elapsed since your complaint. You should complain to the Ombudsman within 12 months of the event or within 12 months of realising there was an issue you wanted to complain about, but the Ombudsman can extend this time limit if, for example, Local Resolution took longer than a year to conclude.

The Ombudsman will look at every complaint that comes to them and decide whether to investigate. The Ombudsman can refer you back to the Local Resolution stage of the NHS Complaints Procedure if they think you have come to the Ombudsman too soon, or if they feel that the NHS organisation involved has not done all it can to resolve your issues locally.

Parliamentary and Health Service Ombudsman (England)
Scottish Public Services Ombudsman
Public Services Ombudsman for Wales
Northern Ireland Ombudsman

To bring a claim for compensation, there has to be negligent treatment, and not just an undesirable outcome. Compensation is not available purely because you or your loved one was left with injuries or disabilities after the illness, or because the outcome of a medical procedure was not as expected. Medical treatment can go wrong and the outcome of meningitis or septicaemia can be terrible even when no one is at fault. Even if it is clear that healthcare was negligent, the failure in care must have caused or contributed to the injury or death of the patient for a claim to be successful.

Making a claim

To bring a successful clinical negligence claim you need to establish two things:

Firstly, that there was a breach of the duty of care which is owed to patients by all clinical practitioners. This means that you must show that the treatment provided fell below the standard expected of a reasonably skilled and competent practitioner in the relevant field. If the Defendant can show that a responsible body of practitioners would have acted in the same way then the claim may be successfully defended.

Secondly, it must be shown that on the balance of probabilities the breach of that duty of care either caused the injury or made it significantly worse.

If you feel that you or your child or loved one has been poorly treated by the health service, or you’ve made an official complaint to the NHS and are not happy with the outcome, you may decide to take legal action. It is very important to choose a solicitor with expertise in medical negligence (see The Importance of Specialist Solicitors
There are only two approved lists of specialist clinical negligence solicitors: the clinical negligence panels administered by Action against Medical Accidents (AvMA) and by The Law Society. We would strongly recommend you contact a solicitor such as Pannone LLP (see Pannone LLP) which operates throughout England and Wales and has a number of approved solicitors on both panels. Both panels include specialist solicitors operating in England, Wales, Scotland and Northern Ireland. These panels are recognised by the Legal Services Commission, the NHS Litigation Authority in England and the Welsh Health Legal Services.

What is the time limit for making a claim?
For adults, a claim must be brought within 3 years of the negligent treatment. For children, the claim can be made anytime up to their 21st birthday, if event occurred when the child was under 18 years of age. In Scotland, the time limit is by the child’s 19th birthday if they were under 16 when the incident arose.

Under changes to the law introduced from 1 April 2009 you can now do this in England. The NHS service you are complaining about should seek to continue to resolve the complaint unless there are clear legal reasons not to do so, i.e. progressing the complaint might prejudice subsequent legal action. If that is the case the complaint will be put on hold, and this should be explained to you. However the default position if you have expressed an intention to take legal proceedings is to seek to continue to resolve the complaint unless there are clear legal reasons not to do so.

In Scotland you cannot pursue a complaint through the NHS complaints procedure if you are already taking legal action.

In Northern Ireland, you will not have access to the second stage of the complaints procedure involving an independent review by the ombudsman if you have already started to take legal action.

In Wales an NHS complaint cannot be taken forward if court proceedings have already been issued, and if court proceedings are issued when a complaint is already under investigation the investigation will be stopped.

This should not prevent you taking legal advice and keeping this as an option while taking a complaint to the NHS, but bear in mind the time limit for taking legal action.

Only you can decide whether it's right for you to make a legal claim, but we hope that the information here will help you understand the process and what some of the other options are as well.

Most people regard the NHS with respect and affection and often feel uncomfortable about bringing a claim against it. The process can be difficult and stressful, and some people find it too painful to have to continually think about what happened. For someone with many demands to cope with, perhaps due to the consequences of their illness or their child’s illness, a legal case can go on for a long time and take a good deal of energy. It may also be costly.

However, if treatment has been negligent, and you or your family member is disabled or has worse disability as a result, then you are entitled to compensation. Taking action so that you/your child receives the money they are entitled to can provide security and funds for treatments, therapy, surgery, equipment and care that will be needed in the future. Additionally, bringing a claim may help answer questions such as why the treatment went wrong and whether the injuries could have been avoided, and result in changes to practices which may prevent similar errors being made in the future (although these issues can also be addressed by making a complaint).

It is important to think it through carefully and MRF’s MeningitisWise free helpline is there for you if you’d like to talk about it.


Other options when things go wrong may include:

The General Medical Council (GMC)

The GMC complaints procedure is only for dealing with extremely grave concerns about a doctor’s fitness to practise at all. To go to the GMC, you would need strong evidence that a doctor deserves very severe punishment and should possibly be stopped from working as a doctor. It is an extremely serious and onerous process.

The GMC only regulates doctors: other health professionals have their own regulatory bodies.The Nursing and Midwifery Council (NMC) regulates nurses and midwives and should be contacted directly if a nurse or midwife potentially poses a threat to patient safety.

If a complaint using the NHS complaints procedure identifies serious concerns about a health professional’s fitness to practice, their employer may refer the case to the GMC, NMC or other regulatory body.

The National Patient Safety Agency (NPSA) is an organisation that aims to identify and reduce risks to NHS patients and improve safety. It has a monitoring role. If you think the NHS could learn from what has happened to you or your loved one, you can contact the NPSA to highlight your experience. They cannot help you deal with your particular problem or complaint.

If you decide to make a complaint, there are organisations that will help and guide you through the process including Patient Advice and Liaison Service (PALS) and Independent Complaints Advocacy Service (ICAS) in England, and patient advocacy organisations in Scotland, Wales and Northern Ireland. You can also consult specialist medical negligence solicitors for advice and assistance through the complaints procedure. However, in the UK outside England there are obstacles to progressing a complaint through the NHS complaints procedure if you are taking legal action.

Patient Advice and Liaison Service (PALS). All NHS Trusts in England have a PALS department to provide information, advice and support to patients and their families. They can also help to raise your concerns informally. They can often help people resolve problems that might otherwise become unpleasant disputes. PALS officers are not independent: they are employed by NHS trusts to enable early resolution by listening to patients' concerns. Because they are part of the NHS trust, they often understand how things work in your hospital, know the doctors, managers and other staff, and therefore have an inside track for presenting your concerns. You can find PALS offices in hospitals, and you can ring the Primary Care Trust in your area for contact details of your local PALS, or use the interactive map on the PALS website

If you need advice from someone independent from the organisation you are unhappy with, PALS will signpost you to organisations that can help you to take things further, for example your local Independent Complaints Advocacy Service

Different organisations have responsibility for patient advocacy in Scotland, Wales and Northern Ireland.

Independent Complaints Advocacy Service (ICAS). ICAS is a free, independent and confidential service for anyone who needs help or advice regarding a complaint about NHS treatment in England. ICAS staff are known as advocates and their role includes helping you to write effective complaint letters, supporting you at meetings and explaining the options available to you at every stage of the complaints process. ICAS can help you raise a concern about NHS care or treatment. Three organisations provide ICAS in different regions of England. The providers are:

• POhWER for the East of England, London and the West Midlands
• SEAP (Support Empower Advocate Promote) for South East and South West England
• the Carers Federation for the East Midlands, the North East, the North West and Yorkshire and Humberside.

You can also get details of your local ICAS or independent advocacy organisation through PALS, from NHS Direct

Scotland

Patient Advice and Support Service (PASS)

Patient Advice and Support Service (PASS) is an independent service which provides free, confidential advice and support to patients, their carers and families about NHS healthcare. The service is provided by the Scottish Citizens Advice Bureau. PASS can explain the rights and responsibilities of patients and it advises and supports people who want to give feedback, raise concerns or make a complaint about treatment and care provided by the NHS in Scotland. It provides practical help with making a complaint, including writing letters, making phone calls and supporting people preparing for or attending meetings.

Wales

Patient Advocacy services are available through Community Health Councils across Wales. They aim to provide help and advice if you have problems with or complaints about NHS services or your NHS practitioner. They also help ensure that patient perspectives influence local health policies and plans, monitor the quality of NHS services from your point of view, and can give you information about access to the NHS.

Northern Ireland

The Patient and Client Council helps people who want to complain about any aspect of health and social care in Northern Ireland. They will tell you how to complain and who to complain to, help write letters of complaint, make telephone calls for you about your complaint, go with you to meetings about your complaint and make sure your concerns are heard and responded to. They also work with health and social care organisations to improve services as a result of your concerns.

The service is independent, confidential and free. They cannot investigate complaints, or offer medical or legal advice.

There are various ways in which a clinical negligence claim can be funded including public funding (“legal aid”), legal expense insurance, conditional fee agreements (“no win, no fee”) or private funding.

Public funding

In England and Wales, only solicitor firms with a Legal Services Commission Franchise are able to apply for and act for a person under a public funding certificate. Franchises are only granted to firms with expertise in clinical negligence claims and membership of the specialist panels of the Law Society or Action for Victims of Medical Accidents (AvMA).

If a firm has a franchise, it means that they can assist clients who are financially eligible. You will need to contact a franchised solicitor to discuss whether you are eligible for public funding. Most children will automatically qualify for public funding, as will any adult in receipt of income support or means tested job seeker’s allowance and families or individuals on low income. When assessing a child’s financial eligibility for public funding, only the child’s means and resources are taken into account. In addition to financial eligibility, the Legal Services Commission must be satisfied that there is good reason to investigate a claim.

As a general rule, it may be difficult to secure public funding for a clinical negligence claim if you have not already been through the NHS complaints procedure.

Public funding for clinical negligence is administered by the Legal Services Commission in England and Wales, and elsewhere in the UK by The Scottish Legal Aid Board and The Northern Ireland Legal Services Commission.

From April 2013, the introduction of the Legal Aid Sentencing and Punishment of Offenders Act  almost completely removed public funding for clinical negligence cases.

Trade Union Funding

If you are a member of a Trade Union, they may help fund your clinical negligence claim.

Legal expense insurance

Many people have Legal Expense Insurance (LEI) attached to one of their insurance policies, such as car or home insurance. Sometimes LEI will cover not only the policy holder but his or her family. Not all policies cover medical negligence cases and many policies have strict time limits on how quickly requests for assistance must be made. It is important to contact a solicitor as soon as possible so that you can apply for this funding.

Conditional fee agreement

If there is no LEI or public funding available, your solicitors may consider entering into a Conditional Fee Agreement (“no win, no fee”) which would cover their fees for investigating and pursuing your claim. This means that if the case is not successful they do not charge you for their fees. However, you may be responsible for the payment of some expenses such as expert fees, and court fees.

Private funding

If none of the options above are available, you could opt to pay privately for a solicitor to investigate your case. The solicitor should give you a clear estimate at the outset and agree with you limits for each stage of the case.

Whatever funding method you are using, it is a good idea to ask whether there is any possibility of being required to pay something during the case or at the end. Different firms offer different arrangements for the same funding method. Some firms expect clients to pay expenses during the case while others will fund these themselves. Some firms also deduct various fees and expenses from the compensation awarded if the claim is successful. If so, you are entitled to an estimate of those fees. All solicitors accredited by AvMA agree to be open and honest with potential clients from the start about charging policies and means of funding legal work in a way that clients can understand and is in their best interests.

Investigating a clinical negligence claim can feel like a daunting prospect. Contacting a solicitor is a big step and often it is not easy to discuss medical treatment that has gone wrong. Clinical negligence is a complex area of law which requires specialist expertise. Patients usually only have one chance to investigate and pursue a claim so it is important to instruct specialists who will provide the expertise and level of service to ensure that the claim has the best possible outcome. It is not a good idea to consult the firm down the road or the family solicitor on this sort of case.

You should instruct a firm of solicitors which has proven expertise in this area, with individual solicitors who are members of the Law Society and/or AvMA (Action against Medical Accidents) specialist panels, the only two approved lists of specialist clinical negligence solicitors. The firm should have a franchise with the Legal Services Commission so that it is authorised to undertake publicly funded clinical negligence work and should be recognised by leading independent bodies such as Chambers Guide to the Legal Profession and the Legal 500.

A specialist solicitor will offer:

• A free first interview
• Straightforward advice on the prospects of success and an estimate of how long the process might take
• Clear advice on how to fund the claim and how funding works
• Information on advice from other professionals during your claim and after, for example on disability rights and benefits
• Knowledge about clinical and rehabilitation needs and the best experts to instruct

Once proceedings are underway, the process could take several years to complete, so it is important to find a specialist solicitor whose expertise you feel confident about from the outset. You are free to approach and make initial enquiries with more than one firm before deciding who you would like to represent you.

How can I check whether or not a solicitor is a specialist?

You can search for clinical negligence specialists on either The Law Society or the AVMA website. Both websites enable you to search geographically to find a solicitor in your part of the UK. MRF is working with Pannone LLP , (see Pannone) one accredited specialist clinical negligence firm that covers England and Wales.

Compensation is known as “damages”. Damages include both “general damages” which are to compensate you for pain, suffering and loss of amenity (for example, not being able to take part in hobbies and loss of enjoyment of certain activities) caused by the negligence, and “special damages” which are to compensate you for specific out of pocket expenses or future losses. Examples include loss of earnings, travel expenses, medical costs, the costs of equipment needed for living with disabilities, increased accommodation costs, and costs for care and assistance.

Your specialist solicitor will assemble a team of experts to help understand the injury and the level of compensation that should be awarded. Experts may include surgeons, neuropsychologists, nursing care experts, educational experts, occupational therapists, speech and language therapists, prosthetists, physiotherapists, and accountants.

In cases where someone has died, the estate will be able to claim damages for the pain and suffering and loss of amenity prior to death. Certain expenses, including funeral costs, can be claimed back and a bereavement award, fixed by statute, is payable to relatives in certain categories. Dependants of the deceased may also be able to claim in respect of that dependency.

What is the difference between 'medical negligence' and 'clinical negligence'?
They mean exactly the same thing: when injury or death is caused or contributed to by a failure in the duty of care during medical, nursing or other clinical consultation or treatment.

Will bringing a claim affect medical care?
No. Pursuing a compensation claim will not affect the medical care offered.

Can I bring a claim on behalf of my child?
Yes. Any child under 18 must have an adult representative, usually their parent, known as their "litigation friend". The solicitors acting for your child will take instructions from the Litigation Friend and correspond with them, not the child. The litigation friend must make all the necessary decisions in relation to the case, and act in the child's best interests. In a claim on behalf of a child, the Court must approve any out-of-court settlement that is reached.

This also applies to disabled adults deemed a ‘protected party’ under the Mental Capacity Act 2005. They too will require a litigation friend to conduct their claim for them.

How do I win a claim?
All clinical practitioners, for example doctors, nurses, physiotherapists, owe their patients a duty of care when treating them. To bring a successful clinical negligence claim you need to show that firstly there was a breach of that duty of care and, secondly, that as a result you, or your child or loved one suffered injury (or died) or the outcome of the illness was made worse. You must show that the treatment provided fell below the standard expected of a reasonable competent practitioner in the relevant field.

Your solicitor will seek a supportive opinion from an independent medical expert on your case. The expert will base their opinion on your medical records, your statement about what has happened to you or your child or loved one, along with any other information supporting your case. If your solicitor cannot obtain a supportive report from an independent expert, then your case will not succeed.

What if a solicitor won't take my case?
It makes no sense for a solicitor to take on a case which is unlikely to succeed. Screening cases to identify which ones are likely to succeed is an essential step before investing in the time, effort and expense of a legal case. If a solicitor turns down your case, ask why and make sure you get a detailed answer. If you are not satisfied, you might want to seek further opinions: possibly the solicitor you have chosen is just not capable of handling your case. However, even if the care you received was negligent or sub-standard, it may be that legal action is not appropriate. Ask your solicitor or PALS or ICAS or AvMA (see Help with Complaints) about what else you can do to get an explanation or an apology for what went wrong, or to improve care at your hospital, surgery etc for others in the future.

How long will a claim take?
This will depend on the type of claim, the injury and whether the healthcare provider admits liability early on or not. As a general guide the whole claims process can take between 2 and 5 years to complete. Cases involving children can take as long as 5 years if the child is very young at the beginning of the case because time is needed to allow the child to develop in order to determine their prognosis to ensure that they are fully compensated for the full extent of their injuries. If admissions are made during the case by the Defendant, then it may be possible to obtain an interim payment of compensation whilst the case is continuing in order to pay for the injured person’s immediate needs, be that professional care, specialist aids/equipment or suitably adapted accommodation.

Will I have to give evidence in court?
Only two to three in every hundred clinical negligence claims end up in Court. Both sides are encouraged to settle the matter quickly and to avoid incurring extra costs. The vast majority of claims are settled beforehand, so often the person suing for negligence does not have to give evidence in Court.

What happens if I win my case?
If you are successful then the Defendant will pay the compensation and all your reasonable legal costs. In some instances they may offer an apology.

What happens to the compensation for a child?
First, the Court will approve any settlement or award of compensation. Once approved, your child’s money will be paid into the Court and managed and invested on your child’s behalf. As a general rule, a child of full mental capacity will not be allowed control of their compensation until they are 18 years old. However, the Court will release money to be used to meet your child’s needs up to the age of 18, with the balance paid to your child thereafter.

Can I make a claim on behalf of someone who died if I think their death was due to negligent medical treatment?
Yes, claims for bereavement damages (compensation for the loss of a loved one) can be made only by the spouse of the person who died, or his or her parents, if it was a child who died. It may also be possible to claim for loss of financial support from the person who died. These dependency claims can be made by children, siblings, and common-law partners, as well as parents and spouses, but only if they can show that they were financially dependent on the person who died.

MRF is happy to be working with Pannone LLP. Pannone has offices in Manchester and London and cover all of England and Wales.

Pannone employs individual solicitors who are members of the Law Society and AvMA (Action against Medical Accidents) specialist panels, the only two approved lists of specialist clinical negligence solicitors. The firm has a Legal Services Commission Clinical Negligence Franchise, so if your case is eligible for legal aid they will be able to pursue it. They are recognised by leading independent bodies such as Chambers Guide to the Legal Profession and the Legal 500.

You can contact them via the Pannone website, email law@pannone.co.uk or 0800 0382 382 (24 hour free phone).

These are some examples of successful claims Pannone has pursued on behalf of individuals who have suffered from negligent delay in treatment for meningitis or septicaemia.

JW: A claim for a 6 year old boy who sadly at age 7 months contracted meningitis which was not diagnosed despite being in hospital some 60 hours before his collapse. He suffered profound brain damage and his life expectancy was significantly reduced. The case was settled for more than £2.5m which will help meet his ongoing need for 24 hour care and support.

WJ: A claim for a young woman who had to undergo a below knee amputation and also lost a number of fingers after her GP delayed in referral when she had meningococcal septicaemia. The claim settled for £1.5m.

IB: A claim against a GP who negligently failed to diagnose Group B streptococcal meningitis in a newborn baby who presented as unwell only days after birth. He survived the meningitis after his parents took him to hospital of their own accord but he was left with significant neurological sequelae and spastic tetraplegic cerebral palsy with profound developmental retardation, epilepsy and impairment of visual functioning. This case settled for more than £1m.

VB: A fatal claim brought on behalf of a widow following to the death of her husband and carer due to delay in diagnosing and treating pneumococcal meningitis. After her husband developed acute symptoms of meningitis an ambulance was called by an out of hours services triage nurse but the paramedics did not initially take him to hospital; when he was finally taken to hospital after an out of hours general practitioner summoned an ambulance he was not seen by a doctor for four hours despite requests from the triage nurse. By the time treatment by way of intravenous antibiotics was commenced it was too late and he succumbed to sepsis secondary to the meningitis. The claim settled for a significant six figure sum.

Cressey v County Durham & Darlington NHS Foundation Trust: A claim brought for the mother of William Cressey who died of pneumococcal meningitis only hours after being sent home from hospital with a diagnosis of a viral illness. After the claim was settled Mrs Cressey commented on the service offered by Pannone:

“The overall level of service which I have received has been exceptional from the first point of contact … Throughout the three years Pannone fought my case the advice which I received was always balanced, considered and detailed. I was treated with kindness and compassion and I believe that they understood and agreed that fighting a clinical negligence case is above all else about principle, about establishing fact and bringing about accountability. The team handling my case were highly professional, motivated and informed, each person always performed to the highest of standards and worked with a perfect balance of professionalism and compassion and complemented each other as a team. Response times were excellent, information and knowledge was always freely given and explained. It is beyond doubt that the team possess an exceptional level of knowledge of clinical negligence and I always felt confident in the advice and information which I received. I feel that the service which I received went well above that level which could be described as excellent, the team always went that extra mile.”