How Making a Complaint Can Help Medical Negligence Cases

11 May 2017

By Medical Negligence Solicitor Daniel Comerford 

The NHS Complaints Procedure

Under the NHS Constitution, if you are unhappy with NHS treatment provided to you within the last 12 months (or within 12 months of you becoming aware of the potential poor service), you have the following rights:

  1. To make a complaint
  2. For your complaint to be investigated
  3. To be notified of the outcome of the investigation
  4. To receive an explanation of the conclusions of the investigation
  5. Where action needs to be taken as a result of your complaint, to be notified of this

Once you have made your complaint:

  1. Your complaint should be acknowledged within 3 working days
  2. You may be offered a meeting to discuss the complaint
  3. You should receive a written response within a reasonable timeframe. This timeframe will be agreed with you in advance, but ideally you should receive a response within 25 days
  4. If you do not receive a response within 6 months, you will be notified in writing with an explanation of the delay

How Making a Complaint can Help Your Case

In medical negligence claims, the burden of establishing negligence is on the patient. This can be a lengthy and expensive process. Performing the initial investigations in a claim normally involves:

  1. Obtaining copies of your medical records - the providers have 40 days to comply with the request for copies
  2. Reviewing and collating the medical records – this usually takes 2 to 4 weeks
  3. Obtaining expert evidence from 1 or more independent medical experts – each expert may take anywhere from 6 weeks to 12 months to prepare a report

Once initial investigations have been completed, assuming that the evidence supports the claim, the rules require you to present your case to your opponent. Your opponent then has 4 months to investigate your claim and respond.

As a result of these timeframes, even in cases where your opponent chooses not to defend the claim, it can take anywhere from 8 to 18 months to secure your compensation. If your opponent decides to defend the claim it can take much longer.

By making a complaint early on, your opponent will start their investigations much earlier. It is possible that your opponent may admit that aspects of your care were substandard in their complaint response. If admissions are made in the complaint response, some or all of the expert evidence may become unnecessary. Removing the need for some or all of the expert evidence will reduce the length of time it takes to resolve your claim and reduce the cost of bringing your claim.

We include below a template letter to help you make a complaint to the NHS:

NHS Medical Negligence Complaint Letter Template

Your Name
Your Address
Your Email
Your Telephone number

Today’s date
Strictly Private and Confidential
Chief Executive
Name of Organisation
Address of Organisation

Dear Sir or Madam,

I am writing to complain about the treatment that I received from your organisation on [insert date or dates]. Please treat this letter as a formal complaint and deal with it in accordance with the NHS complaints procedure.

Provide details of what happened. When and where did events take place? Who was involved?

My Complaint
Set out why you are unhappy with the treatment that you have received.

Remember to:

  • Start with the most important points
  • Deal with one point at a time using a separate paragraph for each point
  • Use short and simple sentences
  • Ask any questions, for example:

i. Please confirm whether the procedure performed on 16/03/17 was performed to an appropriate standard;

ii. Please confirm the cause of my right lower limb problems following the procedure on 16/03/17;

iii. Had the procedure been performed to an appropriate standard, please confirm whether, on the balance of probabilities:
a) I would have suffered any right lower limb problems following the procedure;
b) I would have required the second procedure.

iv. Please confirm whether there is any treatment available that might improve the aesthetics and/or function of my right leg;

v. What is my prognosis?

Suggested Complaint Outcome

This is your opportunity to set out what it is that you want to achieve from the complaint. For example, you may want the organisation in question to:

  • Explain what happened
  • Acknowledge fault and apologise
  • Explain any changes in approach
  • Take steps to put right the problem that you experienced by specifying what those steps will be
  • Say who will undertake those steps and when they will be undertaken

I look forward to receiving your acknowledgement of this complaint within 3 days of your having received the same. As stated above I would request that a full investigation is carried out and a full response received within 25 days in accordance with the NHS Complaint Procedure. If the matter cannot be investigated fully within this timescale please contact me in order to discuss a suitable timescale for the matter to be fully investigated.

Yours faithfully

[insert your name here]

It is part of the Co-op’s ethos and values to provide help and support in enforcing legal rights so as to prevent injustice. We will always strive to secure the best possible compensation and rehabilitation support for our clients.

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