Suing the NHS

[LifeisHard73]

I’ve sadly been diagnosed with an illness that should’ve been picked up 2 years ago. I’ve currently got complaints lodged with my gp and the hospital but I intend to try and sue.

I know there will be opinions about if this is or isn’t right but the advice I’m looking for is if anyone has done this without a solicitor?

I did contact one no win no fee solicitor but they’ve said they can’t take it on, they said:

In your case, we consider that whilst the treatment that you received may have fallen below an acceptable standard, it will be difficult to prove that you have suffered injury as a direct result. This is because the injury may have occurred in any event.

whilst I don’t dispute it might have happened anyway. The delay has made my prognosis worse and I’ve also made financial decisions that I wouldn’t have made if this had been flagged sooner.

looking to hearing from anyone who’s done this without a solicitor.

TY

By all means get a second opinion but if a reputable no win no fee firm have advised you that they won't take it further this is a clear indication that they think this is not winnable.

A close friend is a litigation barrister and does a lot of medico-legal work. Their advise in such situations is always the same (I've asked several times for other friends).

1. go to one of the big reputable med-neg firms and get their advice.
2. If they tell you to drop it. Listen.

I think there's a difference between a GP not knowing the correct diagnosis and doing something that actively causes you harm.

Ie missing that someone has cancer Vs giving someone an overdose of a medicine.

The first case, it feels like it can be reasonable that GPs don't always get the right diagnosis at first, particularly if it's a complicated case - but overdosing someone and causing them harm is obviously negligence.

I knew someone whose grandad went to a GP saying he thought he had cancer (he'd had cancer already three times in his life and had successful chemo) and the Dr said "definitely not" and the man then later died of cancer because he didn't get any treatment until the last minute.

The Dr apologised to the family, they complained but they didn't get any compensation/win of suing the NHS. Because I think based on the man's symptoms it couldn't have been known that he "definitely" had cancer. It's a tricky area imo

whilst I don’t dispute it might have happened anyway. The delay has made my prognosis worse and I’ve also made financial decisions that I wouldn’t have made if this had been flagged sooner
It sounds like you would need to evidence the above. The decision it seems you've made is to give up your job. How can you prove that you definitely wouldn't have made that decision and that this a definite causation between the delay and your decision?

If you have seen 5 gps and 3 consultants which one are you suing? Because you can't just sue the NHS as a whole. Each NHS is run by different trusts. so do you hold them all responsible or just one of them? Who do you think should have picked up on it.

@Gonk123 are you suggesting I should’ve diagnosed myself, that it’s my fault as a non medical person for not being aware?!

I had no idea something was seriously wrong obviously. I was told some of my symptoms were caused my other medication I take for an ongoing but minor condition. The initial blood test was in Dec 2022, I received no feedback, despite the test saying ‘ needs to be repeated’ and didn’t have another one until Dec 2023. I didn’t have access to this at the time or else I would’ve asked but regardless that is not my responsibility. I suppose by Feb 2024 I knew something might be up but no one seemed particularly bothered, I waited 8 months for a follow up, and so I assumed it was something minor. The follow up only happened then as I started to chase them!

I think one of them, all them should’ve seen the low levels of this test and even kept an eye on it. You don’t sue sue an individual as far as I am aware. I will look to pursue the hospital trust and the GP surgery but if and when I find a solicitor I guess I’ll find out more then.

Yes I guess that’s correct. My view is no sane person would leave a role in such a situation. If they had said we think you require monitoring or more test of course I wouldn’t have left and I think most people would say the same. The test stated ‘needs repeating’ but they didn’t repeat it, they didn’t even mention it! And don’t have access to my records at that point. Whether that is proof enough who knows.

Did you ever phone for the results of your test? Finding out the results is your responsibility. It isn't the GP's responsibility to contact you about slightly abnormal results. (Yes if they are grossly abnormal but it does not sound like they were)

Would be useful to have more specifics.

The problem is that they will have arguments that you had other options. The fact you had access to private care, an obvious argument on their side would be that before taking such a harsh decision, you could have asked to see a private doctor, with your company, for a second opinion, before taking that decision.

It then comes back to the causation matter and evidencing it.

It depends what outcome you are seeking - if you want money then you must sue; if you want to try and create a situation where this problem will not arise with anyone else, then make a formal complaint. I did the latter with success - see my earlier post.

Tell us the condition or we can’t properly advise.

I sympathise OP. My mum was repeatedly fobbed off by her GP over four years when displaying obvious symptoms of Parkinson’s disease. She was stressed accordingly to him. She was eventually referred by a locum GP after suffering a bad fall. He immediately noticed the tremor and other symptoms we’d been concerned about for years. Mum is now being treated but would be nowhere near as bad as she is had treatment started sooner.

The GP who fobbed her off also told her that other symptoms she’d had a few years earlier were signs of ageing. Until she collapsed in the street one day and ended up having emergency surgery for a serious heart issue.

He also diagnosed my sister over the phone as having pulled a muscle when she in fact had a deep vein thrombosis.

I would love to sue the incompetent idiot but mum won’t allow it. If she ever has an appointment with him, I go with her and tell him I am recording the consultation. He doesn’t like it but I really don’t care. He shouldn’t be a GP in my view.

It is hard and unfair and yes they shouldn't be exempt from the cost of the harm they've done. The problem is how hard it is to prove but also the effect the stress of a court case could have on your condtion. I know for me and my friends with chronic illnesses that stress makes us all a lot worse.
Our local hospital missed something very big on my youngest son's xrays when he was a toddler. Luckily because of his age the year long delay in treatment didn't effect the outcome, but he went through a lot of unnecessary pain because of that mistake. Not really quantifiable, but infuriating and heartbreaking all the same. Im sorry you've had to deal with delays in diagnosis and treatment and all the what ifs on top of finding out you have a life changing condition.

This is what defines negligence. Early diagnosis does not necessarily alter the longterm outcome of a disease therefore failure to diagnose is unlikely to be considered negligent.
Even if a missed diagnosis results in preventable death it is not necessarily a negligence case. Some cancers such as ovarian and pancreatic can be very difficult to diagnose and there is no reliable screening. Late diagnosis is common. Therefore in the balance of probabilities late diagnosis is not considered negligent. Patients often think that scans and X-rays are necessary but how often do you irradiate someone “ just in case” . Multiple CT scans or X-rays can lead to a dose of radiation that actually increases your risk of developing some cancers.

If a patient is offered screening ( breast, bowel, prostate) and declines then diagnosed at a late stage. Refusal to have screening may be used as a defence in some cases.
You would be surprised how frequently patients withhold information or decline tests making the clinicians job harder.
Sometimes it’s just the insidious onset of symptoms that cause delayed diagnosis.
My other sister was diagnosed with a rare tumour ( benign). Her GP only ordered the test because we have a family history of the condition although it’s not thought to be genetic. Sister was diagnosed after a subsequent MRI. Sister had had symptoms for several years but only pushed for test when the symptoms started to stack up. Initially she just put it down to perimenopause.

I always have elevated liver function test results. They are always slightly high but every so often one of the GPs sends me for a scan and it’s all normal. I had a drug induced hepatitis in my 30s so my liver is a bit weird. The drug was a prescription drug so I now have to be careful with any new drug I have to take.

As a family we could have pursued many GPs and consultants but we are all HCPs and understand how difficult it is to prove delayed diagnosis. We experienced it from the other side and understand the stress it causes. Particularly when the legal team are happy to defend all the way to court. Although it is reassuring that your team are confident, the whole process can take years and the resulting court case takes time out of your valuable clinical time, which is frustrating when you have a long waiting list of patients.

You need to be aware that over the last 15 yrs medicine has become ultra defensive. Patients notes are like epic novels so you need to be very sure of your recollections. The notes are made at the time of the appointment and it can be a surprise when you read them just how much you have forgotten about the consultation. My GP now sends a copy of the notes they have made each time I have a consultation. I am able to review it and ask for any corrections if necessary within 48hrs. Going forward this protects both clinician and patient.

I am not suggesting you shouldn’t sue but you need to be very sure that your case is going to go all the way. If you do it yourself you will need and expert witness ( min £1000) and if you get to court you will need a barrister ( your guess is as good as mine about cost)
The legal team defending the GPs and consultants you intend to sue will be huge and if you lose you will have to pay a mammoth bill, think hundreds of thousands.
Take your case to another couple of reputable solicitors and see if they are interested. Ask about potential costs and the time scale. Also the potential pay out.
If you are likely to receive no more than a few thousand pounds it really isn’t a case they will take on. There is a well established tariff so don’t expect millions, those figures are really only awarded in cases where catastrophic birth injuries have occurred. And remember the solicitor will take more than their pound of flesh.

Has anybody mentioned AVMA?
Action for Victims of Medical Accidents.

They could advise?

Sorry to hear about your condition. Maybe consider a few things?

1. Why do you want to sue? If it’s an apology than an ombudsman may be your way to go or the health trust complaints route. If it’s money then you will have to legally sue. Is it worth the long time and effort to you to do this
2. As others have said, it is in the NHS trust to not admit fault or liability. This opens itself up to your complaint and others (however right or wrong they are). They will have salaried solicitors on staff so be prepared for a long drawn out expensive battle.
3. The burden of proof will fall to you to prove and be very high. We are speaking legally not morally because no matter how hard done by you feel this is now a legal matter. You may have to pay for experts and a lot of legal hours and most solicitors will charge 250 an hour plus.
4. it isn’t going to change the result unfortunately so could a solution be to speak to the ombudsman and they provide you with additional care and support?
5. Mitigating circumstances will be considered such as covid so unfortunately did this just fall into that because legally the NHS could be seen to be in mitigating circumstances.

Either way, really consider what you want and how you want to spend your time.