Medical negligence claims explained

Few things are more distressing than being harmed by the very treatment meant to help you. Clinical negligence law gives patients a route to compensation when care goes wrong — but it is one of the most technical areas of personal injury law, and the bar for proving a claim is genuinely high. This guide explains, in plain English, what counts as medical negligence, the legal tests the courts apply, who you actually claim against, and how the process works, so you can approach a solicitor with a clear understanding of what lies ahead.

A word on what this page is and isn't: we are an independent information service, not a law firm. Nothing here is legal advice about your own treatment. For that you'll need an SRA-regulated solicitor with clinical-negligence experience who can review your records and obtain expert evidence.

What counts as medical negligence?

Medical negligence — the lawyers' term is clinical negligence — happens when a healthcare professional provides care that falls below the standard a reasonably competent practitioner in that field would provide, and that failing causes a patient avoidable harm. It can occur in a hospital, a GP surgery, a dental practice, a pharmacy or any care setting, in the NHS or privately. Crucially, a bad outcome on its own is not negligence: medicine carries inherent risks, and a poor result can occur even with faultless treatment.

To bring a claim you must establish both of two distinct elements. The first is breach of duty — that the care was substandard. The second, and frequently the harder, is causation — that the substandard care actually caused your injury, rather than the natural progression of your existing condition. A diagnosis delayed by months may still not found a claim if the outcome would have been the same regardless. Understanding this split early prevents a great deal of disappointment.

The legal tests: Bolam, Bolitho and Montgomery

Breach of duty in clinical cases is judged against established legal tests rather than simple hindsight.

The starting point is the Bolam test, from Bolam v Friern Hospital Management Committee: a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion — even if other practitioners would have acted differently. Medicine often has more than one legitimate approach, and the Bolam test reflects that.

That test was tightened by Bolitho (Bolitho v City and Hackney Health Authority): the supportive body of opinion must itself be logical and defensible. A court can reject expert evidence that does not withstand reasoned analysis, so a clinician cannot escape liability merely by finding a few colleagues who would have done the same.

For consent, the law moved on with Montgomery v Lanarkshire Health Board [2015]. The Supreme Court held that a patient must be told of any material risks of a proposed treatment and of reasonable alternatives — what matters is what a reasonable patient in that position would want to know, not what doctors think they should be told. A failure to obtain properly informed consent can itself be negligent.

Who you claim against

Where care was provided on the NHS, you do not sue the individual doctor or nurse personally. Instead the claim is handled centrally on behalf of the responsible body, and any compensation is paid from NHS indemnity.

This is one reason patients sometimes worry needlessly about "getting a nurse into trouble" — a successful NHS claim is met from public indemnity, not the clinician's own pocket, and it can drive the lessons that improve care for others.

Common examples of clinical negligence

Clinical negligence covers a wide range of failings. Recognising the pattern can help you decide whether to seek advice.

• Misdiagnosis or delayed diagnosis — a missed fracture, or cancer not picked up when it should have been.
• Surgical errors — operating on the wrong site, retained instruments, or avoidable nerve or organ damage.
• Medication errors — the wrong drug or dose, or a known allergy ignored.
• Birth injuries — harm to mother or baby from mismanaged labour, sometimes causing lasting neurological injury.
• Negligent treatment or monitoring — a deteriorating patient not acted upon, or a substandard procedure.
• Failure to warn of risks — consent obtained without disclosing material risks, contrary to Montgomery.

How the claim process works

A clinical negligence claim is more investigation-heavy than a typical accident claim, but it follows a recognisable path. Your solicitor first obtains your full medical records and reviews them with you. The pivotal step is securing independent expert evidence: a supportive expert in the relevant specialty must confirm both that the care was substandard and that it caused your harm. Without a supportive expert, a claim rarely proceeds.

If the evidence supports you, your solicitor sends a detailed Letter of Claim under the Pre-Action Protocol for the Resolution of Clinical Disputes, which sets out the standards both sides should follow before court. The defendant — NHS Resolution or a private insurer — then investigates and responds, admitting or denying breach and causation. Most claims that have merit are settled by negotiation; only a minority reach a contested trial. The same general framework as any injury claim still applies, and our overview of the personal injury claim process explains the wider stages.

In clinical negligence the medicine is on trial as much as the law. A claim lives or dies on whether an independent expert in the right specialty will stand behind it — which is why specialist advice from the outset matters so much.

Complaints, the Ombudsman and the regulator

A compensation claim is not your only avenue, and for many people it is not the first one. The NHS complaints procedure lets you raise concerns directly with the trust or practice and ask for an explanation and apology. If you remain dissatisfied with the response, the Parliamentary and Health Service Ombudsman (PHSO) can independently investigate NHS complaints in England. Neither route awards compensation, but they can secure answers, accountability and service improvements — and they can run alongside, or before, a claim.

Separately, the Care Quality Commission (CQC) regulates the quality and safety of health and social care providers in England. The CQC does not investigate individual cases for compensation, but its role provides important context about how care standards are monitored. A specialist solicitor can help you decide which combination of routes best fits your goals.

Funding, legal aid and choosing a solicitor

Clinical negligence claims are typically run on a no-win-no-fee Conditional Fee Agreement, usually paired with After-the-Event insurance to cover the cost of expert reports if the claim does not succeed. Most legal aid for personal injury was withdrawn years ago, but one important exception remains: the Legal Aid Agency can still fund claims for severe neurological injury caused around the time of birth, which can be life-changing and very high in value.

Because these claims turn on complex medical and legal questions, use a specialist clinical-negligence solicitor. Look for recognised accreditation — the Law Society Clinical Negligence panel, or membership of the clinical-negligence panel run by AvMA (Action against Medical Accidents) — and always check the firm on the SRA register. Our guide to choosing a solicitor sets out what to ask, and our overview of what compensation covers explains how damages are valued once liability is established.

It is also worth keeping the bigger picture in view: clinical negligence sits within the wider field of injury law, and the same evidence and funding principles that govern any claim apply here too. If you are still working out the basics, our guides on how to claim compensation and on serious injuries such as a head injury claim give helpful background before you take specialist advice. You can also return to our homepage to explore the full range of claim types.

Frequently asked questions