Making a complaint (clinical negligence)

This information has been written as a guide for people who feel that the medical care they have received may have fallen below an acceptable standard. It outlines the issues to consider if you want to make a legal claim for negligence against the doctor or organisation that provided the care.

Although we cannot advise you specifically about whether it is appropriate for you to make a legal claim, this section gives information about the process of making a claim and the people who can help and support you.

Exactly what you need to do will depend on your individual circumstances and your particular situation. This will include the type and stage of your cancer and the type of mistake or treatment error that you feel has been made.

Possible reasons for making a claim

People may wish to make a claim for the following reasons:

• a medical examination or investigation was carried out inadequately
• they were given a wrong diagnosis
• there was an unacceptable delay in diagnosing their condition
• their GP or specialist failed to refer them to the appropriate medical specialist
• they have been given the wrong treatment
• their treatment was unacceptably delayed
• they experienced an unacceptable delay before being referred to a specialist doctor
• their health care team failed to monitor their condition appropriately.

You may wish to make a clinical negligence claim if you have evidence of unacceptable medical care which has caused you physical or psychological injury.

You may be entitled to compensation if you feel that the medical care you received fell below an acceptable standard and has caused you injury. Compensation may be awarded for pain and suffering. It may also be awarded for past or future financial loss, or expenses due to injury or disability. The amount of compensation awarded depends on the severity of the injury and your individual circumstances. For example, compensation can reflect your need to pay for care to be provided professionally or by family members.

If negligence by a hospital or doctor causes the death of a patient, a claim may be brought for the benefit of the dead person's dependants.

The process of making a clinical negligence claim

You can make a clinical negligence claim if you feel that the negligence of a doctor or hospital has injured you, or someone you know.

The first step is to contact the health care professional or a representative of the hospital/treatment centre concerned. It is usually best to contact the consultant who has responsibility for the care of the patient. Discussing the issues with the doctor or health care professional can sometimes resolve the situation.

Making a formal complaint If you are not satisfied after this discussion, you can make a formal complaint under the NHS complaints procedure. Any complaint should be investigated by the hospital and you should receive a response within 25 working days.

A complaint has to be made within six months of the event, or within six months from when you discovered there was something to complain about.

You can get a copy of the NHS complaints procedure from the Patient Advice and Liaison Service (PALS) at your hospital, or from the Department of Health website (www.dh.gov.uk|). The staff in the PALS department can also help and support you if you want to make a formal complaint.

The Independent Complaints Advocacy Service (ICAS) and The Patients Association| can give help, support and advice to anyone making a complaint against the NHS. You can also get support from NHS Direct on 0845 46 47 (NHS 24 in Scotland on 08454 242 424) or from your local Citizens Advice Bureau|.

Getting an independent review If you are not satisfied with the outcome of your complaint you can ask the Healthcare Commission| to conduct an independent review. The Healthcare Commission is an independent body that was set up to promote improvements in healthcare.

The Health Service Ombudsman If you are still unhappy after the independent review, you can complain to the Health Service Ombudsman|. The Ombudsman is completely independent of the NHS and the Government.

If you are not satisfied with the review

If you are not satisfied at any point, you can discuss your complaint with a solicitor. You will need to get an experienced solicitor to help you to make the clinical negligence claim.

How to choose a solicitor

It is advisable to choose a solicitor who is a clinical negligence expert. Two organisations maintain details of accredited clinical negligence solicitors:

• The Law Society
• Action For Victims of Medical Accidents.

When you first meet the solicitor, ask if they are a member of the clinical negligence panel. You can ask questions to show the extent of the solicitor's knowledge of cancer, its diagnosis and treatment. If your questions are not answered clearly, or the solicitor appears hesitant or unsure, you can always go to another solicitor.

You can ask the solicitor how many similar cases they have investigated and whether the cases were successful.

The solicitor will need to have a copy of your medical records.

Getting your medical records

If you make a claim, you will need to have a copy of your medical records. This is so that an independent expert can make a report on the standard of medical care, your present condition and the likely outcome. Under the Data Protection Act (1988) you are entitled to be given a copy of your medical records and the hospital must give you a copy if you ask for it. You will need to specify if you want copies of scans and x-rays.

You will usually have to pay for this service. The cost depends on the amount of information in your records, but will not be more than £50. You do not have to give any reason for asking to see your records and they should be given to you within 40 days of your request.

The solicitor gets an independent medical expert's opinion

Independent experts will check your medical records and report on whether it is appropriate to make a claim against the hospital for any of the reasons listed in the section on possible reasons for making a claim.

If the error was made by a GP, an expert in general practice would have to be consulted. If a hospital doctor made the error, a doctor of the same medical speciality would have to be asked to express a view.

The solicitor writes a 'Letter of Claim' based on the expert's opinion

Based on the expert evidence, the case is set out in a Letter of Claim so that the GP, doctor or hospital can investigate and decide how to respond.

The doctor or hospital responds to the claim

The doctor or hospital has three months in which to carry out an investigation and reply to the detailed allegations of negligence set out in the Letter of Claim. They may accept or deny responsibility but have to give reasons.

If responsibility is not accepted, you may wish to start legal proceedings

The legal proceedings will be based on the Letter of Claim prepared by your solicitor. The Claim will be lodged with the Court and this could mean that matters will go to a trial, where a judge will decide whether or not there was negligence and, if so, what damages should be awarded.

Only a tiny percentage of clinical negligence claims ever go to trial. Most are settled out of court. These settlements are negotiated by the solicitors acting on your behalf, and those of the doctor or hospital. Both sides will have obtained reports from independent medical experts, and these will sometimes be discussed with a barrister (a QC, or Queen's Counsel) who will also advise the solicitors. Quite often the two sets of medical experts will meet to see if they can give an agreed view on whether or not there was negligence, and if so, what the consequences were. This will also help the solicitors' negotiations.

All of this can take a very long time and it is not unusual for legal proceedings in clinical negligence cases to go on for a number of years before they are resolved.

It is highly likely that the Court will at some stage order the experts for both yourself and the doctor or hospital to meet with a view to reaching an agreement.

Many cases are settled at this stage, if not before.

How long after an error a claim may be brought

• A claim should be brought within three years of the error that caused the injury
• Or a claim can be brought within three years from the date it was known, or ought to have been known, that a significant injury may have been caused by an error.
• In the case of children, the three year limit does not apply until their eighteenth birthday. They have until they are twenty-one before beginning a legal claim.

Paying for legal expenses

If you decide to make a legal claim you can pay for legal expenses in one of the following ways:

• Existing insurance. You may be insured for legal expenses under an existing insurance policy. Check all your policies.
• You may be eligible for Legal Aid, however very few people now qualify for Legal Aid. Your solicitor can advise you if you may be able to claim.
• The third option is a conditional fee agreement, the so called "no-win, no-fee" agreement. This means that your solicitor receives a success fee in addition to their normal fee if you win, but nothing if you lose. Such an agreement should be backed by an insurance policy that can cover payment of the defendant's costs if you lose the case.
• The final option is to pay privately. A clinical negligence claim can be very expensive and is unlikely to be a realistic option other than for people who are extremely well off.