It goes like this: if you are the blameless motorcycling victim of an accident the driver of the car will recompense you for your injuries and losses that results – it is only in cases of the grossest mistreatment that the insurer will look to the NHS for payment.
I’ve particularly remember the case of one poor guy who entered a hospital not paralysed but left paralysed. There was talk of the road traffic insurer bringing in the hospital to meet a substantial claim, but it was dropped in a case of clear liability there was zero benefit to the injured motorcyclist in pursuing the hospital.
He got his claim paid in full and the law will not allow a double recovery, against the negligent driver and the (perhaps) negligent hospital.
Now consider a motorcyclist who has a 50/50 split on blame and only gets half the damages from their motorcycle accident. Furthermore they have a fractured leg which has been badly bolted together and they spend an extra year in traction; their original injuries would have been largely recovered in six months.
If the negligence was ‘gross’ then the road traffic insurers can say the failure of medical care was so bad they could not have foreseen the harm. However courts are pretty quick to remind insurers they caused the original harm and the doctors were dealing with the trauma of their insured’s making, which means the cock-up has to be a bad one. Like amputating the wrong leg.
But our unlucky motorcyclist has had a year of strife arising from the medical negligence alone. If they had 100% winner claim, they’d be best leaving the NHS alone, but they are entitled to full recompense against the NHS for harm flowing from their negligence, over and above the harm arising from the accident. More importantly the negligence does not need to be ‘gross’, it simply has to be below the standards of a reasonably competent practitioner faced with the medical emergency the actual treating doctor faced.
How then do you distinguish between one harm and another? Surgeons will opine about when the rider would have got better without the medical treatment going wrong and the judge will apportion periods of time and loss to each act of negligence.
As a rule of thumb, you are much better off concentrating your fire against the driver’s insurers. The law is much more sympathetic to doctors trying their best and getting it wrong than they are to drivers who don’t bother looking out for motorcyclists. The legal test for medical negligence is a significantly stiffer test than the legal test for negligent driving.
Finally remember doctors have to be competent not perfect. If they make a wrong call, but do so reasonably, they are not liable in law for calling a professional judgement in a way which, in the end, turns out to be wrong.
Bike Magazine, November 2022