Making a Clinical Negligence Claim
How to bring a clinical negligence claim against an NHS or private healthcare provider in England & Wales.
সংক্ষিপ্ত বিবরণ
Clinical negligence (also called medical negligence) is where a healthcare provider's treatment falls below the standard expected of a reasonably competent practitioner (the Bolam test — Bolam v Friern Hospital Management Committee [1957]) and that breach caused you harm. Claims must be brought within 3 years of the date of the incident or the date you first had knowledge of potential negligence (Limitation Act 1980, s.11). These cases are complex and expert medical evidence is essential.
এই প্রক্রিয়া কে ব্যবহার করতে পারে
- A duty of care existed (any NHS or private healthcare provider treating you owes you a duty)
- The standard of care fell below that of a reasonably competent practitioner (breach of duty — Bolam)
- The breach caused your injury (causation — Barnett v Chelsea and Kensington Hospital [1969])
- The claim is within 3 years of the date of knowledge of potential negligence
ধাপে ধাপে প্রক্রিয়া
Request Your Medical Records
Submit a Subject Access Request (SAR) under Article 15 UK GDPR to the NHS Trust, GP surgery, or private hospital. Request all records relating to the treatment in question: hospital notes, nursing records, GP records, discharge summaries, consent forms, and any radiology or pathology reports. The provider has 30 days to respond. There is no fee for a SAR. Request records as early as possible — building a full picture is essential.
- Write a clear letter stating you are making a Subject Access Request, the dates of treatment, and what specific records you need
- Request both paper and electronic records — some GP systems hold different information
- If records are incomplete, request a Subject Access Request Review through the ICO
Instruct a Specialist Solicitor
Clinical negligence claims are among the most technically demanding in civil law. Instruct a solicitor who specialises in clinical negligence — many will offer a free initial assessment and work on a Conditional Fee Agreement (no win no fee). The solicitor will assess the merits of your case, advise on prospects of success, and instruct a medical expert. Legal aid may be available in limited circumstances (e.g. for claims on behalf of children or where the case is particularly complex).
- Use the Law Society's Clinical Negligence Accreditation scheme to find specialist solicitors
- Ask the solicitor about their previous experience in the specific area of treatment
- Understand the CFA terms — the success fee is capped at 25% of damages for most cases
Obtain Independent Expert Evidence
Your solicitor will instruct an independent medical expert (a consultant in the relevant specialty) to provide a report on: whether the standard of care was breached (breach of duty), and whether the breach caused your harm (causation). Expert evidence is essential — clinical negligence cases almost always succeed or fail on the experts' opinions. Expect this to take several months and cost several thousand pounds (usually funded by the CFA or legal aid).
- The expert must be independent and have no previous connection to the treating provider
- Causation in clinical negligence is particularly complex — 'but for' causation must be established (Barnett v Chelsea test)
- If the breach and causation are established, the quantum (value) of the claim must also be assessed — often requiring separate experts in care needs, occupational therapy, or earnings
Send a Letter of Claim
Once expert evidence supports the claim, your solicitor sends a detailed Letter of Claim to the defendant (the NHS Trust, GP, or private provider) in accordance with the Pre-Action Protocol for the Resolution of Clinical Disputes. The letter must set out: the factual basis, the allegations of breach, the causal link to harm, and the financial losses claimed. NHS Resolution (the NHS's insurer) must respond within 4 months.
- The 4-month response period is prescribed by the Protocol
- NHS Resolution will conduct its own investigation and instruct its own expert
- Many clinical negligence claims settle at this stage without court proceedings
Negotiate Settlement or Issue Proceedings
If NHS Resolution's response admits liability, negotiations will follow on quantum (the amount of compensation). If liability is denied, your solicitor must consider whether to issue court proceedings. Proceedings are issued in the County Court (for claims under £100,000) or High Court (above £100,000 or complex cases). Most clinical negligence claims settle before trial — even complex cases often settle at or just before the door of the court.
- Part 36 offers can be used strategically — a claimant's offer not beaten at trial attracts enhanced interest and costs consequences for the defendant
- Joint settlement meetings (JSMs) are common in high-value cases — both experts meet to narrow the issues
- Children's claims require court approval of any settlement (CPR r.21.10)
Consider a Formal NHS Complaint in Parallel
A formal complaint to the NHS body (under the NHS Complaints Regulations 2009) and a legal claim can run in parallel. A complaint can provide information, an apology, and a commitment to change — things a court cannot order. The Parliamentary and Health Service Ombudsman (PHSO) is the second-tier complaints body for NHS matters. Importantly, the limitation period runs independently — do not let a complaint process delay your legal claim past the 3-year limit.
- A complaint does not stop the 3-year limitation period — always protect your legal position
- An NHS complaint must be made within 12 months of the incident (or knowledge of it)
- The PHSO can only be approached after the NHS has completed its complaints process
Final Resolution
Clinical negligence claims can result in: an out-of-court settlement (most cases), judgment after trial, or a structured settlement (periodic payments for future losses, particularly in life-changing injury cases under the Damages Act 1996). Compensation covers: pain, suffering, and loss of amenity (general damages); past and future financial losses including lost earnings, care costs, and aids and adaptations (special damages). For children, the court must approve any settlement.
- For catastrophic injury cases, consider a structured settlement (periodical payments order) rather than a lump sum — it provides ongoing security
- Interest runs on past losses from the date of injury
- The NHS Litigation Authority (NHS Resolution) manages NHS claims — they are experienced and well-resourced defendants
খরচ
গুরুত্বপূর্ণ সতর্কতা
The 3-year limitation period runs from the date of knowledge, not necessarily the date of treatment. Do not wait — instruct a solicitor early.
Clinical negligence claims are complex and expensive. Without expert evidence and specialist legal support, the prospects of success are very low.
Do not confuse an adverse outcome with negligence — treatment that follows a responsible body of medical opinion is not negligent even if the outcome is bad.