Medical Negligence — Our Practice Areas
The Legal Tests in Medical Negligence
The Pre-Action Protocol for Clinical Disputes
- 1Obtain medical records — the claimant's solicitor obtains all relevant medical records from the NHS trust or private provider. Records must be provided within 40 days.
- 2Expert evidence — independent clinical experts review the records and provide reports on (a) breach of duty — whether the treatment fell below the Bolam standard, and (b) causation — whether the breach caused the claimant's harm. Both reports are required before a Letter of Claim is sent.
- 3Letter of Claim — a detailed letter setting out the facts, the allegations of negligence, the causal link, and the categories of loss. Sent to NHS Resolution (for NHS trusts) or the defendant directly. The defendant has 4 months to respond.
- 4Letter of Response & settlement or proceedings — the defendant either admits liability (and negotiations on quantum proceed) or denies negligence (and proceedings are issued in the High Court or County Court depending on value).
Frequently Asked Questions
What is the difference between medical negligence and an unfortunate outcome?
Not every bad outcome from medical treatment is negligence. Medicine involves risk, and some treatments fail despite being carried out to a competent standard. A claim for medical negligence requires proof of two things: (1) that the treatment fell below the standard of a reasonably competent practitioner in that specialty (breach of duty — the Bolam test); and (2) that this substandard treatment caused the harm complained of (causation). A solicitor commissions expert reports from independent clinicians on both elements before deciding whether to proceed.
Can I claim against the NHS?
Yes. NHS trusts are liable for the clinical negligence of their employees in the same way as any employer — vicarious liability. Claims against NHS bodies are handled by NHS Resolution (formerly the NHSLA) under the Clinical Negligence Scheme for Trusts (CNST). NHS trusts are self-insured through this scheme and are well-resourced defendants. A specialist medical negligence solicitor manages the pre-action protocol with NHS Resolution and litigates where settlement cannot be agreed.
Is medical negligence funded on a no win no fee basis?
Yes — most medical negligence claims are funded by a Conditional Fee Agreement (CFA). The success fee is capped at 25% of general damages and past losses. After the Event (ATE) insurance is usually arranged to cover adverse costs. For the most serious cases involving children or severely disabled adults, legal aid may be available — a solicitor advises on the funding options available for your specific claim.
How much can I claim for medical negligence?
Compensation depends on the nature and severity of the injury and the losses caused. General damages (PSLA) are assessed using the Judicial College Guidelines. Special damages cover actual financial losses — treatment costs, lost earnings, care costs, and adaptations. For serious injuries, future losses (future care, loss of future earnings, future treatment) can significantly exceed the immediate losses. Catastrophic injury claims — brain injury, cerebral palsy — can reach millions of pounds. A solicitor instructs specialist expert witnesses to quantify all heads of loss.
What if the person who was harmed has since died?
Where a patient dies as a result of medical negligence, two separate claims arise: an estate claim under the Law Reform (Miscellaneous Provisions) Act 1934 (for the losses suffered by the deceased between the negligence and death) and a dependency claim under the Fatal Accidents Act 1976 (for the financial losses suffered by dependants — typically a spouse and children — as a result of the death). A solicitor pursues both claims simultaneously for the benefit of the family.