The impact of Coronavirus is substantial and affects all of us. But what happens if you have been refused treatment or received the wrong treatment? Do you still have a compensation claim against the NHS? The answer is that it depends.
To succeed in a medical negligence claim, you have to establish that there has been a breach of duty of care. Whether there has been a breach depends on the context - which frequently changes. Put simply, there is no breach of duty if the Defendant can establish that a reasonable body of medical experts, faced with the same circumstances at the same time, would have done the same as the Defendant. So, within the present context of the coronavirus, if other hospitals would have done the same, then there is no breach of duty. Something that may have been a breach of duty in March 2019, may not be a breach of duty in the new reality of March 2020.
The value of the claim also needs considering. For example, if a routine GP appointment or operation has been rescheduled, what is the injury to you? It may be worth no more than a few pounds. There is a minimum threshold valuation below which a compensation claim becomes unviable – because you will not recover payment of your legal costs even if the claim is successful. That threshold is currently £1,000, although it may shortly rise to £2,000. Most solicitors are currently not accepting cases where the valuation is £2,000 or less.
There is a three year time limit for a medical negligence compensation claim. The three years starts from the date of the act that gives rise to the claim or, if later, the date when you knew or ought to have known that an act of negligence has occurred. So you can wait, if you wish, for the pandemic to subside, before taking action.
If you think that you may have a claim, I suggest that your first step should be a written letter of compliant. Address it to either the Chief Executive of the treating hospital or the Practice Manager of the GP practice. The first part of the letter should contain enough detail to identify you. The second part should identify where and when you were treated – what Ward or Clinic or Department. The third should explain, in simple non-medical language, what happened to you, how and why it went wrong. The final part should say that you want the letter to be regarded as a formal letter of complaint. Keep a copy. They will investigate and they will reply. But it may take some time, given the current circumstances. You may be satisfied with their explanation or you may not. If you are not satisfied – then contact me.
I am happy to consider and review your claim, free of charge. Email me, Patrick Booth, at patrick.booth@smithpartnership.co.uk.
Please note, all advice and opinion offered in this article are subject to change in line with the latest government advice.
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