Medical Negligence Claims UK - How to Sue the NHS

If you or a loved one has suffered harm because of substandard medical care, you may be able to bring a medical negligence claim (also called a clinical negligence claim) for compensation. This guide explains, in plain English, how claims work in England and Wales – what you have to prove, the strict time limits that apply, the step-by-step claims process, how "no win no fee" funding works, and what compensation is intended to cover. It applies to care provided by the NHS and by private healthcare providers.

Clinical negligence is a complex and specialist area of law. The information below is a general guide only and is not legal advice for your particular situation. If you think you may have a claim, the single most important thing is to seek advice early, because strict time limits apply.

What is medical negligence?

Medical negligence happens when a healthcare professional – such as a doctor, surgeon, nurse, midwife, GP, dentist or other clinician – provides care that falls below the standard reasonably expected of them, and that failure causes you avoidable harm.

It is important to understand that a poor outcome, on its own, is not negligence. Medicine carries inherent risks, and treatment can fail or complications can arise even when the care was entirely competent. To succeed with a claim, you must prove two separate things:

1. Breach of duty – that the care you received fell below a reasonable professional standard; and
2. Causation – that this failure actually caused, or materially contributed to, your injury or made your condition worse.

Both elements must be established. A claim will not succeed if the care was substandard but caused no additional harm, or if you were harmed but the care was nevertheless reasonable. This is why independent medical expert evidence is central to almost every claim.

Proving breach of duty: the standard of care

All healthcare professionals owe their patients a legal duty of care. The question in a negligence claim is whether the treatment met the standard the law requires.

The Bolam test

The starting point is the long-established test from Bolam v Friern Hospital Management Committee (1957). A doctor or other professional is generally not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular field. In other words, the standard is that of a reasonably competent practitioner in the relevant speciality – not the very best in the country, and not judged with hindsight.

The Bolitho gloss

The Bolam test was refined by the House of Lords in Bolitho v City and Hackney Health Authority (1997). The court made clear that a body of medical opinion relied on to defend a doctor's actions must itself be reasonable, responsible and capable of withstanding logical analysis. A practice cannot escape a finding of negligence simply because some professionals would have followed it, if that practice does not stand up to logical scrutiny. This gives the court an important supervisory role.

Informed consent: the Montgomery test

The law on consent changed significantly following the Supreme Court decision in Montgomery v Lanarkshire Health Board (2015). A clinician must take reasonable care to ensure that a patient is aware of any material risks involved in a proposed treatment, and of any reasonable alternative treatments.

A risk is "material" if a reasonable person in the patient's position would be likely to attach significance to it, or if the clinician is (or should reasonably be) aware that this particular patient would attach significance to it. The focus is on the patient's right to make an informed decision about their own body, rather than on what the medical profession alone considers appropriate to disclose. A failure to warn of a material risk that then materialises can amount to negligence.

Proving causation

Even where care has fallen below an acceptable standard, you must still show a link between that failure and your injury. Causation is often the most challenging part of a clinical negligence claim.

The "but for" test

The usual test is the "but for" test: but for the negligent care, would you have avoided the injury or suffered a better outcome? If the same harm would have occurred anyway even with competent treatment, the claim generally fails on causation. For example, in a delayed diagnosis case, it is not enough to show the diagnosis was delayed – you must show that earlier diagnosis would have led to a materially better outcome.

Material contribution

In some cases, particularly where there are several possible causes of an injury acting together, the strict "but for" test can be difficult to apply. In appropriate circumstances the law allows a claim to succeed where the negligence materially contributed to the injury, even if it was not the only cause. Whether this applies depends heavily on the medical facts and expert evidence.

Time limits: how long do you have to claim?

Clinical negligence claims are subject to strict time limits under the Limitation Act 1980. Missing the deadline can prevent you from bringing a claim at all, so early advice is essential.

• General rule: You normally have three years to start court proceedings, running from either the date the negligence happened (the date of injury) or the later "date of knowledge" – broadly, the date you first knew (or reasonably should have known) that you had suffered a significant injury linked to the treatment.
• Children: The three-year period does not begin until a child's 18th birthday, so a claim can generally be brought at any point up to their 21st birthday. Before they turn 18, a claim can be brought on their behalf by a parent or other suitable adult acting as a "litigation friend".
• Protected parties (lacking mental capacity): Where an injured person lacks the mental capacity to conduct legal proceedings, no time limit runs for as long as they remain without capacity. This is important in cases involving severe brain injury.
• Fatal cases: Where negligence has contributed to a death, there is generally a three-year period running from the date of death, or from the date the personal representative or dependant had the relevant knowledge, whichever is later.

Court discretion: The court has a discretion under section 33 of the Limitation Act 1980 to allow a claim to proceed even if the time limit has passed, where it considers it fair to do so. However, this is never guaranteed, and you should never rely on it. Because the exact date a time limit starts and ends can be difficult to work out, always seek advice as soon as possible.

Common types of medical negligence claim

Clinical negligence can arise in almost any area of healthcare. Some of the most common types of claim include:

• Misdiagnosis and delayed diagnosis – including missed or late diagnosis of cancer, sepsis, heart conditions and other serious illnesses, where a delay reduces treatment options or worsens the outcome.
• Surgical errors – mistakes during an operation, avoidable damage to organs or nerves, retained surgical instruments or swabs, or "never events".
• Birth injuries – injuries to a baby (such as those caused by oxygen deprivation) or to the mother during pregnancy, labour or delivery, including negligently managed births.
• Medication and prescribing errors – the wrong drug or dose, dangerous drug interactions, dispensing errors, or failing to monitor medication.
• Negligent treatment – substandard care in hospital, A&E or the community, including pressure sores, hospital-acquired infections and mismanaged conditions.
• Consent failures – not being warned of material risks or reasonable alternatives, so you could not give properly informed consent.
• GP negligence – failures to refer, investigate, follow up or diagnose in primary care.
• Dental negligence – substandard treatment, avoidable nerve damage, failure to diagnose gum disease or oral cancer.

This list is not exhaustive. If you are unsure whether your experience amounts to negligence, it is worth asking a specialist solicitor to review it.

The claims process step by step

Clinical negligence claims in England and Wales follow the Pre-Action Protocol for the Resolution of Clinical Disputes. This sets out the steps both sides should take to try to resolve a claim fairly and, wherever possible, without going to court.

1. Initial assessment and obtaining your records

Your solicitor will first review what happened and assess whether you may have a claim. If it is worth investigating, they will obtain your full medical records so the care can be examined in detail.

2. Independent medical expert evidence

Your records and account are reviewed by one or more independent medical experts in the relevant speciality. These experts advise on whether the care fell below an acceptable standard (breach of duty) and whether that caused your injury (causation). Their evidence is the foundation of the claim.

3. Letter of Notification and Letter of Claim

Where the evidence supports a claim, your solicitor may send a Letter of Notification to alert the healthcare provider at an early stage. A detailed Letter of Claim is then sent, setting out the allegations of negligence, how the injury was caused, and the losses being claimed.

4. Letter of Response

The healthcare provider (or their representatives) is expected to investigate and provide a reasoned Letter of Response within the timescale set by the protocol, stating whether the claim is admitted or denied and, if denied, why. Claims against the NHS in England are handled by NHS Resolution, the body responsible for managing negligence claims on behalf of NHS organisations.

5. Negotiation and settlement

Many claims are resolved by negotiation without ever reaching a final court hearing. If liability is admitted or the evidence is strong, the parties may negotiate a settlement, sometimes using alternative dispute resolution such as mediation.

6. Court proceedings if necessary

If the claim cannot be resolved – for example, because liability is disputed or a fair offer is not made – court proceedings can be issued. Even then, most cases settle before trial. Going all the way to a contested trial is the exception rather than the rule.

How much does it cost? "No win no fee" and other funding

Concern about legal costs stops many people from pursuing a valid claim. In practice there are several ways clinical negligence claims can be funded.

Conditional Fee Agreements ("no win no fee")

Most clinical negligence claims are funded by a Conditional Fee Agreement (CFA), commonly known as "no win no fee". This means that if your claim is unsuccessful, you do not pay your solicitor's fees. If it succeeds, your solicitor is entitled to a success fee, which in clinical negligence cases is deducted from part of your compensation and is capped by law. Your solicitor should explain clearly, in writing, exactly what you would pay in each outcome before you sign.

After-the-Event (ATE) insurance

A CFA is usually combined with an After-the-Event (ATE) insurance policy. This protects you against certain costs – such as the other side's costs and the cost of medical reports – if the claim does not succeed, so that pursuing a claim need not leave you out of pocket.

Legal aid

Legal aid was withdrawn from most clinical negligence claims, but it remains available in limited circumstances. The most significant is for babies who suffer a severe neurological injury (such as brain damage) around the time of birth. If this may apply to your case, ask your solicitor whether legal aid is an option.

Other options

Some people have "before the event" legal expenses insurance (often attached to home or motor policies) or trade union funding that may cover a claim. A specialist solicitor can review the funding options that best suit your circumstances.

What compensation can you claim?

Compensation in a clinical negligence claim (legally called "damages") is intended to put you, so far as money can, back in the position you would have been in had the negligence not occurred. It is not a fixed figure or a fine – it is calculated on the specific facts of your case. Damages fall into two categories.

General damages

General damages compensate for the injury itself – the pain, suffering and loss of amenity (the impact on your ability to enjoy life and do the things you used to). The amount reflects the severity and lasting effect of the injury. Courts and solicitors use the Judicial College Guidelines, together with awards in comparable past cases, as a framework for valuing this element. Every injury is different, so any figures you see quoted elsewhere are only broad brackets, not a promise of what you would receive.

Special damages

Special damages compensate for the financial losses and expenses caused by the negligence, both those already incurred and those expected in the future. These can include:

• Past and future loss of earnings, and loss of pension;
• The cost of care and assistance, including care provided unpaid by family members;
• Costs of additional medical treatment, therapy and rehabilitation;
• Specialist equipment, aids and adaptations to your home or vehicle;
• Travel and other out-of-pocket expenses.

In the most serious, life-changing cases, future losses – particularly care costs over a lifetime – can far exceed the general damages. Because the value of a claim depends entirely on the severity of the injury and the losses it causes, no responsible solicitor can promise a specific amount at the outset.

How MCR Solicitors can help

At MCR Solicitors, based in Manchester, our clinical negligence team helps people across England and Wales who have been harmed by substandard medical care – whether by the NHS or a private provider. We understand how distressing it is to be let down by the very people you trusted with your health, and we are here to guide you through the process with clarity and care.

We can:

• Review your case and give you an honest assessment of whether you may have a claim;
• Obtain your medical records and instruct the right independent experts;
• Handle the claim under the Pre-Action Protocol, including dealing with NHS Resolution or private providers on your behalf;
• Explain your funding options, including no win no fee, in plain terms; and
• Negotiate the best possible settlement, and take the case to court where necessary.

If you think you or a family member may have a medical negligence claim, contact MCR Solicitors for a confidential, no-obligation discussion. Call our team on 0161 466 1280 or get in touch through our website. Because strict time limits apply, please do not delay in seeking advice.

Frequently asked questions

How long do I have to make a medical negligence claim?

Usually three years from the date of the negligence or from the "date of knowledge" – when you first realised, or reasonably should have realised, that you had suffered a significant injury linked to your treatment. Different rules apply to children (the three years runs from their 18th birthday), to people who lack mental capacity (no time limit runs while they are incapacitated), and to fatal cases (generally three years from the death or date of knowledge). The court also has a limited discretion to extend time, but you should never rely on it. Because working out the exact deadline can be difficult, seek advice as early as you can.

How much compensation will I receive?

There is no fixed amount. Compensation is calculated on the individual facts of your case and reflects both the injury itself (general damages, valued with reference to the Judicial College Guidelines and comparable cases) and the financial losses it has caused (special damages, such as lost earnings, care and treatment costs). The more serious and long-lasting the harm, the higher the potential award. A specialist solicitor can give you a realistic assessment once the evidence has been reviewed.

Will I have to go to court?

Most likely not. The majority of clinical negligence claims are resolved through the pre-action process and negotiation, and settle without a contested trial. Court proceedings are sometimes needed – for example, where liability is disputed – but even then most cases settle before reaching a final hearing. Your solicitor will always try to resolve matters as efficiently as possible.

How does "no win no fee" work?

Under a Conditional Fee Agreement (CFA), you generally pay no solicitor's fees if your claim is unsuccessful. If it succeeds, your solicitor is entitled to a success fee, which in clinical negligence cases is deducted from part of your compensation and is capped by law. A CFA is usually backed by After-the-Event (ATE) insurance to protect you against certain other costs. Your solicitor will explain in writing exactly what you would pay in each outcome before you commit.

Can I claim against the NHS?

Yes. You have the same right to claim compensation for negligent care whether it was provided by the NHS or a private healthcare provider. Claims against NHS organisations in England are handled by NHS Resolution on their behalf. Bringing a claim does not target the individual doctor or nurse personally, and it can help ensure lessons are learned and standards improved.

Is a poor outcome always negligence?

No. Medical treatment carries genuine risks, and a disappointing or even serious outcome can occur despite entirely competent care. A claim only succeeds if you can prove both that the care fell below a reasonable standard and that this failure caused you avoidable harm. This is why independent medical expert evidence is essential to every claim.