Clinical Negligence
Legal framework for claims arising from substandard medical treatment, including the duty of care, the Bolam/Bolitho standard, causation, and informed consent.
Introduction
Clinical negligence (sometimes called medical negligence) is a branch of the law of negligence applied to the healthcare context. A defendant healthcare provider — whether an NHS trust, a private hospital, or an individual clinician — owes a duty of care to their patients. A breach of that duty, causing damage, gives rise to a civil claim for compensation. The combination of complex medical evidence, demanding causation rules, and the three-year limitation period (subject to date of knowledge provisions) makes clinical negligence one of the most technically demanding areas of personal injury practice. The standard of care is set by the Bolam test (Bolam v Friern Hospital Management Committee [1957]): a clinician is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion. However, Bolitho v City and Hackney Health Authority [1998] requires that the responsible body's view must have a logical basis — it is not enough for experts to assert that a practice is acceptable if the court concludes it cannot withstand logical scrutiny. Informed consent was transformed by the Supreme Court decision in Montgomery v Lanarkshire Health Board [2015], which overruled the previous Bolam-based approach to consent. A doctor must now ensure that the patient is aware of any material risks involved in the proposed treatment and of any reasonable alternative treatments — 'material' being judged by what the particular patient would be likely to attach significance to, not what the medical profession considers it appropriate to disclose.
In Brief
Clinical negligence claims require proof that a healthcare provider fell below the Bolam standard of care, and that this breach caused the claimant's injury. Following Montgomery v Lanarkshire [2015], informed consent is judged by what the particular patient would consider material, not by what clinicians customarily disclose. The limitation period is three years from injury or date of knowledge.
Core Principles
Duty of Care — Healthcare providers owe a non-delegable duty of care to their patients. The duty arises from the assumption of responsibility when a clinician undertakes to treat a patient. NHS Trusts are vicariously liable for the acts of their employed clinicians; GP partnerships are liable for their partners and employees.
Standard of Care (Bolam) — The test is whether the defendant acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art (Bolam v Friern [1957]). Expert evidence is essential; a claimant must establish that no responsible body of medical opinion would have acted as the defendant did.
Logical Basis Requirement (Bolitho) — Where a defendant relies on a responsible body of expert opinion, the court must be satisfied that the opinion has a logical basis — the experts must have directed their minds to the comparative risks and benefits and have reached a defensible conclusion (Bolitho v City and Hackney [1998]).
Informed Consent (Montgomery) — A doctor must take reasonable care to ensure the patient is aware of any material risks in the proposed treatment and of reasonable alternative or variant treatments. Risk is 'material' if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is aware the particular patient would (Montgomery v Lanarkshire [2015]).
Causation — 'But for' causation applies: the claimant must show that but for the negligence, the harm would not have occurred. In clinical cases this is often the most difficult hurdle. Where negligence has caused the loss of a chance of a better medical outcome, the approach is less clear after Gregg v Scott [2005].
Loss of Chance and Material Contribution — In some cases (particularly delayed diagnosis) courts will find a 'material contribution' to the risk of injury (Bailey v Ministry of Defence [2008]). Chester v Afshar [2004] extended the causation rules for informed consent cases: where a patient is not warned of a risk that materialises, causation is established even if the patient would have eventually had the same procedure.
Limitation — The limitation period is three years from the date of injury or the claimant's 'date of knowledge' — when they first had knowledge (or could reasonably have acquired it) that the injury was significant, attributable to the act or omission alleged, and caused by the defendant (Limitation Act 1980 s.14). The court has a residual discretion to disapply the limitation period under s.33.
NHS Resolution and Pre-Action Protocol — Most NHS clinical negligence claims are handled by NHS Resolution (formerly the NHSLA). The Pre-Action Protocol for the Resolution of Clinical Disputes requires letters of claim and response, with a lengthy exchange phase designed to encourage early settlement and avoid unnecessary litigation.
Key Statutes
Limitation Act 1980
Mental Capacity Act 2005
Health and Social Care Act 2008
Leading Cases
Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582
Bolitho v City and Hackney Health Authority
[1998] AC 232
Montgomery v Lanarkshire Health Board
[2015] UKSC 11
Chester v Afshar
[2004] UKHL 41
Common Scenarios
Surgical error causing permanent injury
A patient suffers nerve damage during a routine operation. To succeed in negligence, they must establish: (1) the surgeon's technique fell below the Bolam standard — no responsible body of surgeons would have performed the procedure as they did; (2) the substandard technique caused (or materially contributed to) the nerve damage; and (3) the nerve damage caused quantifiable loss. Supportive expert evidence from an independent consultant is essential. Causation is often the key battleground, particularly where the injury was a known risk of even competent surgery.
Misdiagnosis and delayed treatment
A GP fails to refer a patient presenting with 'red flag' symptoms for an urgent cancer investigation. Diagnosis is delayed by 18 months, by which time the cancer is inoperable. The claimant must establish the standard of care (would a competent GP have referred urgently?), and causation — what would have been the prognosis with timely diagnosis? Loss of a chance arguments may arise (Gregg v Scott). Claims against GPs are defended by NHS Resolution under the Clinical Negligence Scheme for General Practice (CNSGP).
Failure to obtain informed consent
A patient is not told about a 1-in-200 risk of paralysis before spinal surgery. The risk materialises. Following Montgomery, the surgeon should have disclosed this risk as material. The causation question is whether, had the patient been warned, they would have declined the procedure or sought a second opinion — and if so, when the operation would have taken place (Chester v Afshar). A full psychiatric impact assessment and evidence about the patient's decision-making approach will be required.
Delayed treatment in A&E
A patient suffers a significant deterioration after a prolonged wait in A&E during which a rapidly deteriorating condition goes unrecognised. The trust must demonstrate that triage, monitoring, and escalation protocols were followed appropriately. Where multiple clinicians are involved, establishing which breach caused which damage can be complex — and apportionment may be needed. The Pre-Action Protocol requires a detailed letter of claim and a substantive letter of response before proceedings are issued.
Related Careers
Frequently Asked Questions
How long do I have to make a clinical negligence claim?
The primary limitation period is three years from the date of the negligent treatment or from your 'date of knowledge' — i.e. when you first knew (or reasonably should have known) that you had suffered a significant injury attributable to the treatment. For children, time does not run until they turn 18. The court has a discretion under s.33 of the Limitation Act 1980 to allow late claims, but this is uncertain and should not be relied upon.
Do I need an independent medical expert?
Yes — almost invariably. You need supportive expert evidence on both breach of duty (establishing the defendant fell below the standard) and causation (establishing the breach caused your injury). Without a positive expert report on both limbs, your claim is very unlikely to succeed, and under the Pre-Action Protocol you should obtain an expert opinion before sending a letter of claim.
What is the Bolam test?
The Bolam test is the standard of care in clinical negligence: a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular specialty. It means there can be more than one acceptable approach — a clinician is not negligent simply because other clinicians would have acted differently, provided a responsible body supports what was done.
Can I claim against the NHS?
Yes — you can bring a clinical negligence claim against an NHS Trust, Foundation Trust, or (since 1 April 2019) an NHS GP practice. Most NHS clinical negligence claims are handled by NHS Resolution, which manages two indemnity schemes: the Clinical Negligence Scheme for Trusts (CNST) and the Clinical Negligence Scheme for General Practice (CNSGP). Compensation may be structured as a lump sum or, for very serious injuries, a periodical payments order.
Is the NHS duty to be honest with patients after something goes wrong?
Yes — NHS providers have a statutory 'Duty of Candour' (introduced by the Health and Social Care Act 2008 as amended, and implemented by Regulation 20 of the Care Quality Commission (Registration) Regulations 2009). When an unintended or unexpected incident results in death or moderate or serious harm, the provider must notify the patient (or their family), offer an apology, and provide a written account. Failure to comply is a criminal offence.
Important Deadlines
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Official Resources
What To Do Next
Step-by-Step Guides
Know Your Rights
Common Scenarios
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