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Compensation for a Medical Misdiagnosis

The very act of seeking medical help and advice when you’re feeling ill is something which creates a feeling of vulnerability. If we’re honest, most of us are fairly ignorant about the precise workings of our own bodies or about the conditions which might afflict us. This lack of knowledge means that we place our trust, our future health and even our lives into the hands of the medical practitioners we speak to. In the vast majority of cases, this trust is well placed and the medical staff we deal with do an excellent job and perform to the kind of high standards we’ve come to expect. Sometimes, however, things can go wrong, and when a mistake is made which leads to your illness being misdiagnosed then the effects can be devastating.

The size of the problem

Bearing in mind the fact that the NHS treats the equivalent of 243 million patients per year, it is not surprising that mistakes sometimes occur. In statistical terms, the number of claims made against the NHS is relatively small – a mere 0.007% – but each individual case can have a huge impact upon the life of the person involved and of their friends and family.

NHS Resolution is the part of the NHS which deals with claims made against it for negligence. The latest figures, published in July 2019, reveal that the NHS paid out £2.2 billion in the year spanning 2018/19 as a result of harm suffered by patients, a similar number to the previous year.

SOURCE: gov.uk (PDF)

Other figures, released by NHS Resolution following a Freedom of Information request, broke the compensation down into the amounts which were specifically awarded for medical misdiagnoses during 2017/18. These figures showed that the number of claims for a failed, delayed or wrong diagnosis during the course of the year was 1,357, and that the amount of damages paid in respect to these claims was £192,488,220. Elsewhere, the figures also revealed that the NHS Trust with the highest compensation paid over the three years up to 2017/18 was Lewisham & Greenwich NHS Trust, which paid £24,568,884 to settle 33 claims.

These figures should not be taken as any kind of a guide as to the average or expected pay-out, since every case in unique. What they do underline, however, is the fact that mistakes of this kind can clearly, at their worst, have a devastating effect leaving victims in need of compensation for the rest of their lives.

Proving you were the victim of misdiagnosis

If you’ve been misdiagnosed then you may be in a position to make a claim for compensation. A successful claim will depend upon being able to demonstrate that you were misdiagnosed due to medical negligence, and that this negligence resulted in injury, suffering and financial hardship on your part.

Claims of this type are amongst the most complicated there are, due to the nature of the evidence. In order to successfully pursue a claim it must be demonstrated that the treatment received fell below the level which might reasonably have been expected, and that this failure caused you harm. Whereas other types of claim, such as those involving car accidents, are often fairly straightforward in nature and are frequently settled without recourse to a court, medical negligence involves arguing highly complex matters with people who are experts in the field.

In years gone by, the test used in a court to determine whether negligence had taken place was called the Bolam test. It took the form of a legal definition of negligence stating that a medical practitioner had been negligent if the treatment they provided was below the standard reasonably expected of someone working in their field.

More recently, this definition has been widened slightly to include cases such as those in which the patient couldn’t give informed consent for a course of treatment because the practitioner involved hadn’t provided them with all of the information needed, such as the risks presented by the treatment.

Although the basic principles are the same whether you were treated in a private practice or the NHS, the NHS does have a written constitution, setting out your rights when something goes wrong.

These rights include:

  • The right to make a complaint and have it dealt with efficiently and in full.
  • The right to be told what the outcome of any investigation is.
  • The right to take your case, if you feel you’ve been unfairly treated, to the Parliamentary and Health Service Ombudsman.
  • The right to be compensated if you’ve been harmed via an act of negligence.

No matter what the details of your case, any claim is more likely to be successful if it is launched as quickly as possible after the misdiagnosis involved. NHS Resolution pledges to deal with complaints within 12 months, but if the practitioner denies liability a court case could take much longer. In some cases, the practitioner might admit negligence but contest the extent of the injury caused. If this happens, an interim payment might be made to maintain your standard of living and quality of life whilst medical experts on both sides argue the precise nature of your injuries.

Building a claim against a private medical practice will involve bringing together all available records of your treatment and having your current state evaluated by a qualified practitioner. If this assessment concludes that you have been the victim of negligence, your solicitor will begin building a case, basing it on the treatment you received and the effect this had had on your life as a whole. The practitioner involved will then be informed by a ‘Letter of Claim’ that you intend to make a compensation claim. Under the UK ‘Court Rules’ they have 4 months to reply to this letter. This reply will take the form of an admission of negligence and an offer of compensation, or a denial of responsibility. In the event of a denial, or a compensation offer which is too low, your solicitor may then begin preparing to fight a court case.

That’s why it’s vital, if you feel you’ve been misdiagnosed, that you should contact an injury lawyer at the earliest opportunity. If you call a trained legal adviser on 0800 234 6438 then they will listen to the details of your case and advise as to whether they honestly feel there are grounds for a claim. If you wish to proceed, they can then pass your on to a solicitor who will work on a no win no fee* basis, so you don’t have to take a financial risk to launch a claim.

DID YOU KNOW: Changes to the law in April 2013 mean in successful cases, solicitors can no longer claim their success fee from the losing side.

Different types of medical misdiagnosis

Medical misdiagnosis tends to fall into distinct categories. There are cases of complete misdiagnosis, in which a condition has been missed altogether, late diagnosis, in which a condition is spotted after advancing further than it should and thus worsening, and incorrect diagnosis, which could lead to the wrong treatments and medication being prescribed. No matter what the nature of your illness, mistakes of this kind could prove disastrous, greatly increasing the pain and discomfort you suffer, prolonging the period it takes to recover and, in some cases making the difference between life and death.

Loss of wages taken into account when compensation is paid

It also has to be accepted that mistakes of this kind can have a direct financial effect upon the victim of negligence. Any illness may lead to you having to take time off work and thus lose money in terms of wages. Any calculation of compensation will take this into account, along with any other expenses such as medical bills.

Launching a claim against the NHS or a private clinic may seem daunting and it would only be honest to admit that there’s nothing simple about such claims. The aim of the no win no fee system, however, is to open justice up to everyone irrespective of their income, and if you’ve suffered in this way you should have the opportunity to seek redress. Doing so on your own may seem like a step too far, but doing it with our help will ensure that, however long it takes, justice is done.

Other Important Information

*No Win No Fee

  • Although all our cases are handled on a no win no fee basis, other costs could be payable upon solicitors request. These will be fully explained to you before you proceed. Most customers will pay 25% (including VAT) of the compensation they are awarded to their law firm, although this may vary based on individual circumstances. Your solicitor may arrange for insurance to be in place for you to make sure your claim is risk free. Termination fees based on time spent may apply, or in situations such as: lack of cooperation or deliberately misleading our solicitors, or failing to go to any medical or expert examination, or court hearing.
  • *Criminal Injury Claims

  • If you want to make a claim for a criminal injury, you are not required to use the services of a claims management company to pursue the claim. You can submit your claim for free on your own behalf, directly to the Criminal Injury Compensation Authority (England, Wales, and Scotland) or the Criminal Injury Compensation Scheme (Northern Ireland).
About the Author

Nicola Laver LLB

Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.

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