Explains what clinical negligence is, how to make a complaint about clinical negligence and where to find more information and support.
If you want to make a legal challenge about negligent treatment, you will need to go to court. It's a good idea to get legal advice before going to court.
You can ask for your medical records to see what evidence there is to support your claim. See our pages on accessing my personal information to find out how you can do this.
Letter of Claim
Before going to court, you must send a Letter of Claim setting out your legal case. There are very specific rules this has to follow, called the Civil Procedure Rules (CPR). It can be easy to get it wrong, so it's important to get legal advice for this step.
In England, if your legal challenge is about the service you received under the NHS, NHS Resolution may respond on behalf of the hospital or healthcare professional.
You'll need to start the legal claim within three years from the date of the incident or from when you knew the injury was negligent.
- For children, the three years starts when they turn 18.
- For someone who lacks capacity to make decisions, the time limit starts when they regain capacity.
If you're a family member or carer of someone who has experienced clinical negligence, you can bring a claim on their behalf if:
- they're under 18
- they don't have the capacity to complain at that time
- they have died because of the negligent treatment.
(Please note: this example talks about someone taking their own life.)
Les was a patient detained under the Mental Health Act and on one-to-one observations because she was suicidal and self-harming.
When she improved, she was given escorted leave, but she ran away and attempted suicide. The care team believed that she was a high risk of taking her own life but she was not put back onto one-to-one observations, and sadly she took her own life.
Her partner brought a claim of clinical negligence against the hospital as her death could have been prevented.
It's always important to get legal advice about your situation before going to court.
You can get in touch with a solicitor by using the Law Society's find a solicitor tool, or by calling them on 020 7320 5650. You can get a list of solicitors based in your area that specialise in clinical negligence. You can also see our useful contacts page for more information on where to find legal help.
Taking legal action can be complicated and stressful, and it's understandable that you might want some support to help you through the process. Our page on getting support when making a complaint has more information about who can help.
Generally, legal aid isn't available for clinical negligence. Legal aid is only available in cases where a child has a neurological injury resulting in them being severely disabled during pregnancy, child birth or the postnatal period (8 weeks) and they are financially eligible.
In rare circumstances, you might be able to get legal aid even though your case falls outside of the usual scope – this is called 'exceptional case funding'. You will need to speak to a legal aid lawyer to find out whether this applies to you.
Conditional fee arrangement
Solicitors may agree to a conditional fee agreement (CFA) or a 'no win no fee' agreement. This means that you won't have to pay your solicitor's fees if you don't win your case. However, a solicitor is unlikely to take on the case if they think it will lose. You can speak to a solicitor to see if they will take your case.
Check your insurance policy
It's also a good idea to check any insurance policies you have like a home contents or car insurance. Sometimes these policies also cover general legal expenses, which can be used to pay a solicitor.
If you're a member of a union at your workplace, then the union may have solicitors who can give you legal advice about your case.
If you go to court and are successful, the court can award you money as compensation, which are called damages.
Damages can include:
- compensation for pain and suffering
- costs of ongoing treatment and further operations
- compensation for if you can't carry out hobbies or daily activities (called 'loss of amenity')
- loss of earnings
- costs of extra care or equipment you need
- costs of adapting your home; or
- compensation for psychiatric or psychological injury.
However, even if you're successful, a court can't:
- force a hospital to change its working practices
- improve standards
- make a doctor or hospital apologise.
If you want the doctor or hospital to apologise, you can do this by making an informal or formal complaint. You can find more information on our page about complaining about health and social care.
One way or another, your dispute will eventually come to a conclusion. For some people, this can bring a lot of relief. For other people, this can be a difficult time, regardless of the outcome.
For example, you might:
- feel disappointed, frustrated and angry if the outcome wasn't everything you hoped for
- be satisfied and relieved with the outcome, but still feel overwhelmed by what you've been through
- have spent a lot of time and energy on your dispute – perhaps months or even years
- need to rebuild relationships with your care team
- have already moved on from that care team and want nothing more to do with them
- not really feel that things really have been resolved at all, but still feel that it's the right choice for you to end the dispute at this stage.
Letter before claim
A letter of claim (sometimes known as a 'letter before action') is a letter putting a person on notice that court proceedings may be brought against them.
Courts believe that bringing legal action should be a last resort and encourage people to resolve their disputes at an early stage by communicating with each other and trying to find a solution informally.Visit our full listing of Legal Terms
Civil Procedure Rules (CPR)
These are the rules which set out how a case is to be conducted in the civil courts (as opposed to criminal courts) in England and Wales. The aim of these rules is to make the court procedures fairer and easier to understand.Visit our full listing of Legal Terms
NHS Resolution is the part of the NHS which has been set up to deal with negligence claims. They defend claims brought against the NHS and share learning from claims to improve patient and staff safety in the future.Visit our full listing of Legal Terms
'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.
For example, if you do not understand the information and are unable to make a decision about your treatment, you are said to 'lack capacity' to make decisions about your treatment.
See our pages on the Mental Capacity Act for more information.Visit our full listing of Legal Terms
Mental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.Visit our full listing of Legal Terms
Legal aid is financial support which can help meet the costs of legal advice, family mediation and representation in a court or tribunal.Visit our full listing of Legal Terms
Conditional fee arrangement (CFA)
This is an arrangement that law firms sometimes make to pay for your legal case. It means that you only pay for your lawyer's work if you win your case and you receive compensation.
If your claim is successful, you'll pay for your lawyer's costs, as well as an extra percentage of the compensation, called a 'premium'.
If your claim is unsuccessful, you won't have to pay for your lawyer's legal work.Visit our full listing of Legal Terms
This is money awarded by a court to be paid as compensation for your loss or injury.Visit our full listing of Legal Terms
This information was published in November 2018.
This page is currently under review. All content was accurate when published.
References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.