How to Make a Medical Negligence Claim

The Claims Process: Overview

A medical negligence claim is a structured legal process governed by strict procedural rules. In England and Wales, the Pre-Action Protocol for the Resolution of Clinical Disputes sets out what both parties must do before proceedings are issued. Compliance with the Protocol is mandatory; failure to comply has cost consequences.

The typical trajectory of a clinical negligence claim is:

1. Initial legal assessment — is there a viable claim?
2. Obtaining and reviewing medical records
3. Independent expert evidence on breach of duty and causation
4. Pre-action correspondence (Letter of Claim / Letter of Response)
5. Negotiation and settlement — or
6. Issue of proceedings and litigation to trial

The majority of clinical negligence claims that survive initial screening settle without reaching trial. However, settlement only follows thorough investigation — a defendant will not pay compensation without expert evidence establishing both breach and causation.

Step 1: Initial Legal Assessment

The starting point is an initial assessment by a specialist clinical negligence solicitor. This is the stage at which the solicitor considers whether your case has sufficient merit to proceed — specifically:

• Is there a plausible argument that the standard of care was breached?
• Is there a plausible causal link between the alleged breach and the harm you suffered?
• Does the case have sufficient value to justify the cost of pursuing it?
• Is the case within limitation, or are there arguable grounds to extend time?

This assessment is typically carried out on the basis of a detailed initial interview (in person, by telephone, or by video) and a preliminary review of any documents the claimant holds — discharge letters, correspondence, test results, or any documents produced by the NHS complaints process.

At this stage, no fee is usually charged. Solicitors who take clinical negligence cases on a no win no fee basis absorb the cost of initial assessment as part of the commercial risk.

Who should I instruct?

Clinical negligence is a complex, specialist area. Claimants should instruct a solicitor who specialises in clinical negligence — not a general personal injury firm. The Law Society's Clinical Negligence Accreditation scheme and the AvMA (Action Against Medical Accidents) solicitor directory are useful starting points. In Scotland, look for Law Society of Scotland accredited specialists. In Northern Ireland, the Law Society of Northern Ireland maintains a solicitor directory.

Step 2: Obtaining Medical Records

Medical records are the foundation of any clinical negligence claim. Patients have a statutory right to access their records under the UK GDPR and the Data Protection Act 2018. Records can be requested from:

• NHS trusts (hospital records)
• GP practices (primary care records)
• Private hospitals and clinics
• Any other healthcare provider who holds records about your care

The healthcare provider must respond within one month (extendable to three months for complex requests). There is no charge for electronic copies; a reasonable charge may be applied for paper copies.

In practice, obtaining complete records — particularly from NHS trusts with fragmented digital systems — can take longer than the statutory period. Solicitors routinely chase providers who fail to comply in time and issue Data Subject Access complaints to the ICO where necessary.

The records obtained will typically include:

• Hospital notes and nursing observations
• Operative notes and anaesthetic records
• Laboratory results and radiology reports
• GP records and referral letters
• Prescription and medication records
• Consent forms
• Any internal incident investigation or mortality and morbidity review documents

Step 3: Independent Expert Evidence

Once records are obtained and reviewed, the solicitor will instruct one or more independent medical experts to provide preliminary opinions on:

Breach of duty

An expert in the relevant specialty — a consultant surgeon, radiologist, obstetrician, or GP — reviews the records and provides an opinion on whether the care provided fell below the standard of a reasonably competent practitioner. This is a binary opinion: breach established, or not.

Causation

A separate expert — often in the same or a related specialty — addresses whether the breach caused or materially contributed to the harm. In complex cases (cancer, brain injury, multi-system harm) multiple causation experts from different specialties may be required.

If both experts provide positive preliminary opinions — breach established, causation established — the case proceeds. If either opinion is negative, the case is unlikely to be viable and the claimant will be advised accordingly.

The solicitor has an obligation to advise the client honestly at this stage — including advising that the case is not viable if the expert evidence does not support it. Reputable clinical negligence specialists do not pursue unmeritorious cases.

Step 4: The Letter of Claim

Where the preliminary expert evidence supports the claim, the solicitor sends a Letter of Claim to the defendant. In England and Wales, this document is prescribed by the Pre-Action Protocol for the Resolution of Clinical Disputes and must contain:

• A clear chronological summary of the facts relied upon
• An identification of the alleged breach or breaches of duty
• An explanation of the causal link between the breach and the harm
• An indication of the heads of damage claimed
• Request for medical records not yet obtained

The defendant has four months from receipt of the Letter of Claim to investigate and provide a Letter of Response. The Letter of Response must admit or deny each allegation.

NHS Resolution — the body that handles claims against NHS trusts — will typically conduct its own investigation, obtaining its own expert evidence during this period.

Scotland

In Scotland, there is no equivalent Pre-Action Protocol. Pursuers are required to give reasonable notice of the claim, and the standard practice is to correspond before raising proceedings.

Northern Ireland

Northern Ireland has its own pre-action protocol for clinical negligence cases, which broadly mirrors the England and Wales Protocol.

Step 5: Negotiation and Settlement

Once the defendant's Letter of Response is received, the parties enter a period of negotiation. If the defendant admits breach and causation (in whole or in part), discussions move to quantum — the amount of compensation. If liability is denied, the claimant must decide whether to proceed to litigation.

Settlement discussions typically involve:

• Exchange of schedules and counter-schedules of loss
• Exchange of expert evidence
• Part 36 offers (formal offers to settle with cost consequences if rejected)
• Joint Settlement Meetings (JSMs) — face-to-face negotiation with counsel

The majority of cases that pass the expert evidence stage settle before or shortly after proceedings are issued. Full trial remains relatively uncommon in clinical negligence, though it does occur — particularly where liability is genuinely disputed on the expert evidence.

Step 6: Litigation

Where negotiation fails, the claimant's solicitor issues a Claim Form in the appropriate court:

• County Court or High Court (Queen's Bench Division) in England and Wales — most substantial clinical negligence cases are issued in the High Court
• Court of Session or Sheriff Court in Scotland
• High Court of Justice in Northern Ireland

Following issue, the case proceeds through case management stages:

• Allocation and directions (timetable for expert evidence exchange, witness statements, and trial preparation)
• Exchange of witness statements
• Exchange of expert reports and joint expert statements
• Pre-trial review
• Trial

At trial, the judge hears evidence from witnesses of fact (the claimant, treating clinicians) and expert witnesses (both sides' independent experts). Judgment is reserved or given orally. In complex cases judgment may be reserved for several months.

Timescales

Clinical negligence claims take time. Realistic timescales from initial instruction to resolution are:

Straightforward cases resolving at pre-action stage: 18–30 months

Moderate complexity cases resolving after proceedings issued: 2–4 years

Complex high-value cases (catastrophic injury, fatal accident): 3–6 years

Cases proceeding to trial: Add 12–18 months to the above from issue of proceedings

The pace of a case depends significantly on the complexity of the medical issues, the speed of record disclosure by the defendant, and the availability of specialist expert witnesses.

NHS Resolution

NHS Resolution is the body that manages clinical negligence claims against NHS trusts in England on behalf of the NHS. The vast majority of NHS negligence claims are handled through NHS Resolution's indemnity schemes (primarily the Clinical Negligence Scheme for Trusts — CNST).

NHS Resolution has a published commitment to learn from claims to improve patient safety, and operates specialist services including the Early Notification Scheme for severe birth injury claims and the Rapid Resolution and Redress scheme.

NHS Resolution is not an obstacle to meritorious claims — it employs experienced claims managers and panel solicitors whose role includes settling meritorious cases and defending unmeritorious ones.

Read more about NHS clinical negligence claims →

Scotland and Northern Ireland

Scotland

Clinical negligence claims against NHS Scotland boards are handled by the Central Legal Office (CLO), which performs an equivalent function to NHS Resolution. Claims are raised in the Court of Session (for substantial cases) or the Sheriff Court.

Northern Ireland

Claims against HSC trusts in Northern Ireland are handled by the HSC Litigation Authority. The pre-action framework broadly mirrors England and Wales.

Time limits for medical negligence claims →No win no fee funding →

Related Guides

• Medical negligence FAQ — common claimant questions
• Glossary — Letter of Claim, JSM, Schedule of Loss explained
• No win no fee — how funding works