Clinical negligence

Most people are happy with the treatment and care they get from healthcare professionals. But sometimes mistakes can happen and things go wrong, which can be very upsetting. If your care has fallen below an acceptable level and has caused injury or harm, you may want to think about making a claim for clinical negligence.

You will need to get legal advice. A solicitor will assess your situation. If they think it would be sensible to investigate, the first steps are to:

  • get a copy of your medical records
  • make a statement about what happened
  • get the advice of an independent medical expert.

This information will help the solicitor to predict the eventual outcome of your case.

A successful claim means you will get financial compensation (money after an injury or death). Usually, you must start the claim within 3 years from the date when you think a mistake was made that may have resulted in an injury or harm.

There are organisations that provide information and support to people making a claim.

Why you might make a claim for clinical negligence

Most people are happy with the treatment and care they get from healthcare professionals. But sometimes mistakes can happen and things go wrong, which can be very upsetting. If your care has fallen below an acceptable level and has caused injury or harm, you may want to think about making a claim for clinical negligence.

A successful claim means you will get financial compensation (money after an injury or death). You will need to get legal advice.


The difference between a clinical negligence claim and a complaint

Both a clinical negligence claim and a complaint should give you information about what went wrong. They may both lead to a formal apology or changes in practice to stop the event from happening again. But a complaint will not give any financial compensation (money after an injury or death).

You might feel that you or your family has suffered, or will suffer, because you have not been treated properly. This can include physical and psychological injury as well as financial losses, such as loss of income and the cost of future care that may be needed. If this is the case, you should think about getting specialist legal advice about making a clinical negligence claim.


When you might make a clinical negligence claim

We cannot advise you whether it is right for you to make a clinical negligence claim. But we hope this information answers your questions and directs you to other organisations that can help and support you.

Some examples of clinical negligence include:

  • a delay in diagnosis and treatment, which may be due to a delay in referring you, an administrative error or a mistake in a laboratory
  • being given the wrong diagnosis
  • being given the wrong treatment
  • being given treatment that was badly planned and has caused avoidable complications
  • being given treatment without your consent
  • not being told about the risks of treatment
  • not being given appropriate follow-up, which has led to a recurrence of the cancer being diagnosed late or missed.

Usually, you must start the claim within 3 years from the date when you think a mistake was made that may have resulted in an injury or harm. Most of the time, the courts will not extend this to longer than 3 years.

For a child, the 3-year period does not begin until their 18th birthday (or their 16th birthday in Scotland).

For adults who are unable to make their own decisions (lack mental capacity), the 3-year limit may not apply unless they recover from their disability.

In both these cases, a parent or other person close to them can make a claim on their behalf. We have more information about making a negligence claim.


Things to think about before making a clinical negligence claim

A claim for clinical negligence can go on for a long time. It can be stressful and take up a lot of your time and energy. And you may already have other things to cope with if your health is affected. It can also be expensive, although you may be able to get help with some of the costs.

Before starting a claim, you may find it helpful to talk about your concerns with the healthcare professionals involved or an organisation that can advise you. Or you can use the NHS complaints procedure. These may lead to the result you are looking for.

It will help to get advice from a solicitor about what a clinical negligence claim might be able to achieve. Many specialist clinical negligence solicitors will be happy to have a first discussion with you free of charge. A specialist clinical negligence solicitor should also make sure that a claim involves as little stress as possible and no financial risk to you.

The Law Society and Action against Medical Accidents (AvMA) will be able to tell you about clinical negligence specialists in your area.

The solicitor will assess your situation and decide if you have a strong enough case. If they think it would be sensible to investigate, the first steps are to:

  • get a copy of your medical records
  • make a statement about what happened
  • get the advice of an independent medical expert.

This information will help the solicitor to predict the eventual outcome of your case.


Seeing your medical records

Before you make a complaint, you may find it helpful to see your medical records. If you are making a clinical negligence claim, you will need a copy of your medical records and possibly copies of scans and x-rays. You do not have to explain why you want to see them.

Send your request to the GP practice manager or the hospital’s medical records officer. You might need to include a copy of your driving licence or passport and proof of your address, such as a recent utility bill. A copy of your records should be given to you within 40 days. The cost may vary, but will be no more than £50. NHS UK can give you more information about this.

Parents can apply to see their child’s medical records. If the child is mature enough, the healthcare professional will check if the request is made with their agreement.

If you are asking for the records of someone else, you will need their written permission. Or if you have the legal authority to make health and care decisions on a person’s behalf, such as a Lasting Power of Attorney (LPA) or Welfare Power of Attorney, you will need to include a copy of this.

If there is no legal authority or if the person is unconscious or unable to communicate their permission, their health professionals have a duty to act in their best interests in deciding what information should be released.

If you are asking for the records of someone who has died, you will need to explain your relationship to them. If you were appointed as an executor by their will, or have taken out letters of administration because they did not leave a will, you should mention this. In this situation, the £50 limit of what can be charged does not apply. You may want to ask what the fee will be if there are a lot of records. You can also ask to only see records made after a certain date.

If you do not want to request your records yourself, your solicitor should be able to make the application for you.


Recording your own account of what happened

It is a good idea to make a note of what you remember as soon as you start to worry that there may have been a problem with your treatment. Your solicitor will need as much information as possible to help them with your claim.

Make a record of everything you can remember about what happened. Ask your family and friends to do the same. You should include anything that is relevant to your treatment. If you have been through the complaints procedure, you should include any correspondence you may have had, such as letters, emails and records of phone calls. You should also keep a record of any costs involved or any loss of income.


Getting another medical opinion

Your solicitor will instruct an independent medical expert to look at your medical records, your statement about what happened and any other available evidence. If the medical expert supports the claim, the solicitor will start the process.


Making a clinical negligence claim

The process of making a claim varies slightly across the UK. Your solicitor will put forward your case, and the person who made the mistake (the defendant) will have the chance to respond. After this, a court date is set, but most claims are settled before a court hearing.

Claiming in England, Wales and Northern Ireland

Once your solicitor has established that you have a valid claim, they will write to the defendant. This is the hospital trust or doctor concerned. The letter is a called a Letter of Claim and it sets out your version of the facts and your claim (allegations) about what went wrong.

The defendant, or their solicitor, has 4 months (3 months in Northern Ireland) to investigate the allegations and send a detailed Letter of Response. They may accept or deny responsibility.

If they do not accept responsibility, legal proceedings may start and a date will be set for a trial in court.

Claiming in Scotland

Once your solicitor has established that you have a valid claim, the case will be taken to the Court of Session in Edinburgh, the All-Scotland Personal Injury Court in Edinburgh or the local Sheriff Court.

The person or hospital you are claiming against is called the defender. The defender must be told about the court action within the 3-year limit. They then have 21 days to tell the court that they wish to defend the case.

The court will then set a timetable that gives both sides enough time to prepare their case. You will usually meet with your legal team to discuss the case if needed. They should support you throughout your case.

The court will then decide if the claim can go to a full hearing in court. Both sides are encouraged to settle the case quickly to avoid extra costs.

Claiming on behalf of someone else

In England and Wales, if an adult is unable to make their own decisions (lacks mental capacity), a parent or other person close to them can make a claim on their behalf. In Scotland, this can be carried out by a guardian. A guardian can be:

  • a family member
  • a carer of the adult
  • a professional person, such as a solicitor
  • the chief social work officer of the local authority.

In England and Wales, a parent can make a claim on their child’s behalf. In Scotland, the claim would be made by an adult acting as a guardian.

In Northern Ireland, a parent or legal guardian is called the next friend.


Funding your clinical negligence claim

Your solicitor will talk to you about the legal costs and will discuss the best way to pay for your claim. You may be entitled to some help.

Private funding

You may be able to pay for the legal costs yourself. A clinical negligence claim can be very expensive, so many people will not be able to pay for it themselves. In England and Wales, new rules mean that if you lose a clinical negligence claim, you will not usually have to pay the defendant’s legal costs. Similar rules are being considered in Scotland. Your solicitor can advise you about the likely cost of making a claim and your chance of winning.

Legal expenses insurance

If you have legal expenses insurance, and your solicitor believes your claim has reasonable prospects of success, your insurer will pay for the work which needs to be done up to an agreed hourly rate. Many people do not realise they have this insurance, which may be an add-on to your home contents policy, for example. Your solicitor will be able to help you check.

If you are a member of a trade union, you may be able to get financial help from them.

‘No win, no fee’ agreement

A solicitor may agree to act for you on the basis of a ‘no win, no fee’ agreement. In England, Wales and Northern Ireland, this is called a conditional fee agreement. In Scotland, it is called a speculative fee agreement. This means that you do not pay your solicitor if they lose the case.

Medical experts are not allowed to act on a ‘no win, no fee’ basis. Your solicitor will talk to you about getting help to cover their fees.

Legal aid

In England and Wales, legal aid (public funding) is only available for children who have suffered a brain injury caused at birth.

You may be able to get legal aid if you live in Scotland or Northern Ireland and have a low income. Your solicitor can give you more advice.


Your feelings about making a clinical negligence claim

Making a clinical negligence claim can be difficult and upsetting. It may be painful to remember what has happened, and to keep going over it.

Solicitors who deal with clinical negligence claims are used to dealing with people who have been injured. They will want to make sure you understand what is going on and will value your contribution. If you want, you can tell the solicitor that you do not want to know about the details of the claim, if this will be too stressful for you.

If you still need medical care, you may find it hard to trust your healthcare professionals. You can mention this to them so they understand your worries. Making a clinical negligence claim should not affect ongoing treatment or care in any way.

Each person has their own way of coping with difficult situations. You may find it helpful to talk to family, friends or someone outside of your situation. Other people prefer to keep their feelings to themselves. There is no right or wrong way to cope. Our Online Community is a place where you can share experiences with people who know what you are going through. You might also find our information on coping with your emotions helpful.

We have a list of organisations (see below) that may be able to offer you advice and support. You may also find it helpful to talk to a counsellor who can listen and help you deal with your emotions. Call us on 0808 808 00 00 to talk to our cancer support specialists, who can give you advice about finding a counsellor in your area.

'Give us a call, we're here to listen.'

Zahida from our support line talks about how giving us a call can help.

More about our support line

'Give us a call, we're here to listen.'

Zahida from our support line talks about how giving us a call can help.

More about our support line


Help with your claim

The following organisations can help you make your complaint or give you information and support.

National organisation

  • Action against Medical Accidents (AvMA) can give you advice and information about making a clinical negligence claim. This includes information about paying legal costs and finding a solicitor. You can call their helpline on 0845 123 2352.

England

  • Patient Advice and Liaison Service (PALS) can give you information about the NHS complaint procedure. You can find your nearest PALS office on the NHS Choices website, by asking your GP or at local hospital, or by phoning NHS 111.
  • The Law Society aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in England and Wales. Find out more on their website or call 020 7320 5650.
  • Citizens Advice also has online information about making a clinical negligence claim.

Scotland

  • The Patient Advice and Support Service is available through Citizens Advice Scotland. Call 0800 917 2127, chat to them online, visit any Scottish citizens advice bureau or email pass@cas.org.uk
  • The Law Society of Scotland aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in Scotland. Find out more on their website or call 0131 226 7411.
  • Citizens Advice Scotland also has online information about making a clinical negligence claim.

Wales

  • Patient advocacy services are available for free through Community Health Councils (CHC). They can help you make a complaint about NHS services or your NHS practitioner. You can call 02920 235 558 or find your local CHC at NHS Direct Wales.
  • The Law Society aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in England and Wales. Find out more on their website or call 020 7320 5650.

Northern Ireland

  • The Patient and Client Council can help you make a complaint about NHS services. Find out more on their website or call 0800 917 0222.
  • The Law Society of Northern Ireland aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in Northern Ireland. Find out more on their website or call 028 9023 1614.

Back to Making treatment decisions

How treatment is planned

A team of health professionals will work with you to plan the treatment that is best for your situation.

Getting a second opinion

Your treatment will be planned using national guidelines, but you may still want another medical opinion.

Making a complaint

If you are unhappy with the treatment or care you have received, you may want to make a complaint.

Making a decision

It is important to remember that the decision you make is the right one for you at the time.

Aims and side effects of treatment

Treatments can have different aims depending on your situation. Your healthcare team will explain the possible side effects of treatment.