What must be proved in a clinical negligence claim in Scotland?
Clinical negligence is a specialist branch of
personal injury law in Glasgow. To succeed, the
pursuer (the person claiming) generally has to establish the following.
Duty of care
A healthcare professional owes a duty of care to the patients they treat. In most claims about treatment
this is not in dispute.
Breach: the standard of a reasonably competent practitioner
The key question is whether the care fell below an acceptable standard. In Scotland the test for
negligence in diagnosis or treatment comes from the case of Hunter v Hanley (1955): a doctor is
negligent only if proved to be guilty of such failure as no doctor of ordinary skill would be guilty of
if acting with ordinary care. In practice, that means comparing what happened with what a reasonably
competent practitioner in the same field would have done. A different outcome, or a treatment that did
not work, is not in itself negligence.
Causation
It is not enough to show that care was substandard. The pursuer must also prove that the failure caused
or materially contributed to the harm, rather than the harm resulting from the underlying illness or a
recognised risk of treatment. Causation can be complex in medical cases.
Consent after Montgomery
In Montgomery v Lanarkshire Health Board, decided by the UK Supreme Court on 11 March 2015 in a case
from Scotland, the court held that a doctor is under a duty to take reasonable care to ensure that the
patient is aware of any material risks involved in recommended treatment, and of any reasonable
alternative or variant 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 doctor is or should reasonably be aware that
this particular patient would be likely to do so. As with any other clinical negligence claim, causation
must still be proved.
How does a medical negligence claim work in Scotland?
Time limits
Clinical negligence claims follow the same time limit as other injury claims under section 17 of the
Prescription and Limitation (Scotland) Act 1973. Court action must usually be raised within three years
of the injury or, if later, the date when you knew or could reasonably have known that the injury was
serious enough to justify a claim, that it was caused by an act or omission and who was responsible.
Time while the injured person was under legal disability because of nonage or unsoundness of mind is not
counted, and the court has a limited discretion under section 19A to allow late claims. Because the date
of knowledge can be hard to pin down in medical cases, take advice early.
The NHS complaints procedure
If you are unhappy with NHS care in Scotland, you can complain under the NHS Scotland complaints
handling procedure. Stage one is early resolution, normally within five working days. Stage two is a
fuller investigation, with a response normally within 20 working days. You should usually complain
within six months of the event, or of finding out you had reason to complain, and no more than 12 months
after the event, although late complaints can be accepted in exceptional circumstances. A complaint can
produce an explanation and an apology, and the response may help your solicitor understand what
happened. These complaint time limits are separate from the three year court time limit.
The Scottish Public Services Ombudsman
If you remain unhappy after the NHS body's final response, you can ask the Scottish Public Services
Ombudsman (SPSO) to review the complaint. The SPSO normally cannot look at a complaint that has not
completed the NHS complaints procedure, and does not normally investigate if you have known about the
problem for more than 12 months before complaining.
NHS Central Legal Office
Claims against NHS boards in Scotland are defended with support from the Central Legal Office, part of
NHS National Services Scotland, which provides legal services to health boards, including in clinical
negligence litigation. National Services Scotland also runs the Clinical Negligence and Other Risks
Indemnity Scheme (CNORIS), which provides cover for clinical risk for its member organisations. GPs and
dentists working as independent contractors are generally outside CNORIS, so claims about their care may
be handled differently.
Expert evidence and the courts
Clinical negligence cases usually depend on independent expert evidence. Your solicitor will obtain your
medical records and instruct experts in the relevant speciality to report on whether the care fell below
the standard of a reasonably competent practitioner and, separately, on causation and the effect on your
health. If the claim cannot be settled, it is raised in court. Claims valued at £100,000 or less must be
raised in the sheriff court, and the All-Scotland Sheriff Personal Injury Court in Edinburgh deals with
injury cases from across Scotland; higher value cases may go to the Court of Session.
How to choose a medical negligence solicitor in Glasgow
Clinical negligence is technical, so look for a firm that handles these claims regularly, works with
independent medical experts and explains its funding terms clearly. Questions to ask at a first meeting:
- How many clinical negligence claims like mine do you handle, and who will run my case?
- How will you investigate breach and causation, and which experts would you instruct?
- What is the time limit in my case, and when does it start?
- Should I complain to the NHS board first, and how will that fit with a claim?
- How would my claim be funded, and what could I have to pay?
- How will you keep me updated, and how will you advise me on any offer?
If a loved one has died and you are dealing with their affairs, our guide to
executry solicitors in Glasgow explains the separate process
of administering their estate.
Costs, funding and legal aid for clinical negligence in Scotland
Clinical negligence claims can be funded through a success fee agreement, the Scottish form of no win no
fee, under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. You pay no fee, or
a reduced fee, if the claim fails, and the success fee taken from damages is capped by regulations in
force since 27 April 2020.
Qualified one-way costs shifting applies to personal injury claims, including medical negligence, raised
on or after 30 June 2021. It means the court must not normally order you to pay the defender's expenses
if you lose, unless you act fraudulently, behave in a manifestly unreasonable way or abuse the court
process.
Civil legal aid may be available if you meet the financial test and the Scottish Legal Aid Board is
satisfied that you have probable cause and that it is reasonable to grant aid. Advice and assistance can
cover early advice for people on lower incomes, sometimes with a contribution. For other disputes with
private healthcare providers, such as billing, see
dispute resolution solicitors in Glasgow.
How to read the rankings on this page
Our rankings reflect published evidence about each firm, such as the clinical negligence work it
describes, how clearly it explains its funding terms and its regulatory status. They are not a guarantee
of any outcome or level of compensation. Always check a firm directly before you instruct it, and read
how we rank for the full method.