Medical negligence claims in Scotland run under Scots law, with their own rules. An action must normally start within three years of the injury or, if later, of when you became aware (or could reasonably have become aware) of the key facts. Time while a person is a child or of unsound mind is not counted, and the court can allow a late action if it seems equitable. If you conduct a personal injury claim properly, the court must not order you to pay the other side's expenses, and success fees for injury claims are capped by law. Complaints go to the NHS board first, with the Scottish Public Services Ombudsman as the final stage.
Our UK medical negligence guide explains the general legal tests for negligence. This guide covers the Scottish points that change how a claim works: the limitation rules, the protection against expenses, the funding rules, the complaints route and the duty of candour. We are an independent information service, not a law firm.
Who handles claims against the NHS in Scotland
NHS National Services Scotland's Central Legal Office provides legal services for health boards, including litigation support on clinical negligence cases. NSS also publishes guidance for NHS boards on membership of the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS) and on submitting claims to it. A claim against a private clinic or practitioner is made against them and their insurer or indemnity provider. For which Scottish court hears a claim and the general Scottish procedure, see our guide to claiming in Scotland.
Time limits under Scots law
| Situation | Rule | Law |
|---|---|---|
| Adult injury | 3 years from the injury or, if later, from when you became aware (or could reasonably have become aware) that it was serious enough, was caused by an act or omission, and who was responsible | 1973 Act, s.17(2) |
| Children and people of unsound mind | Time while under legal disability by reason of nonage or unsoundness of mind is disregarded | 1973 Act, s.17(3) |
| Death | 3 years from the death or, if later, from when the relative became aware of the key facts | 1973 Act, s.18 |
| Defective medical products | 3 years from awareness, and the obligation is extinguished 10 years after the relevant time | 1973 Act, ss.22A and 22B |
| Late actions | The court may allow an action out of time if it seems equitable | 1973 Act, s.19A |
Relatives of someone who died because of negligence can also claim damages in their own right under the Damages (Scotland) Act 2011.
Complaints, advice and the duty of candour
The Patient Rights (Scotland) Act 2011 requires NHS bodies to encourage patients to give feedback or comments, or raise concerns or complaints, and patients can raise them with the NHS body or with the Patient Advice and Support Service. If you are not satisfied with the response, the SPSO is the final stage for complaints about public service organisations in Scotland. A complaint and a legal claim are different things, so check your time limit rather than waiting for a complaint to finish.
Scotland also has a statutory duty of candour. Where an unintended or unexpected incident in the provision of a health service appears to have resulted in, or could result in, outcomes such as death or severe harm, the responsible person must follow the duty of candour procedure. That procedure is set by regulations, which can cover notification, an apology and the offer of a meeting. The opinion that triggers the duty must come from a registered health professional who was not involved in the incident.
Expenses and funding
Protection against expenses. Under section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, in a claim for damages for personal injuries, including disease and impairment, the court must not make an award of expenses against the person bringing it, provided they conduct the proceedings in an appropriate manner. That protection can be lost for fraud, manifestly unreasonable behaviour or an abuse of process.
Success fee caps. Under the 2020 success fee regulations, the cap in a personal injury claim is 20% of the first £100,000 of the financial benefit, 10% of the amount between £100,000 and £500,000, and 2.5% of anything over £500,000. The Scottish Legal Aid Board publishes a civil legal aid eligibility estimator.
Practical steps
- Ask for copies of your medical records and keep a timeline of appointments, symptoms and conversations.
- Raise a complaint with the NHS board or through the Patient Advice and Support Service if you want an explanation.
- Speak to a solicitor who handles clinical negligence in Scotland, who can obtain independent expert opinion on the standard of care and on causation.
- Keep the three-year period in view from the start, especially if a complaint is still open.
Check your time limit
This checker applies the three-year period. It is set to Scotland, but you can switch jurisdiction. For a child or a person of unsound mind the Scottish date is likely to be later than the date shown, because that time is disregarded, so take advice.
Time limit checker
Indicative only. It applies the basic three-year statutory periods and cannot account for every exception, such as a later date of knowledge or a court's discretion. It is not legal advice: take advice well before any deadline.
Frequently asked questions
How long do I have to make a medical negligence claim in Scotland?
Normally three years from the injury or, if later, from when you became aware, or could reasonably have become aware, that the injury was serious enough to justify an action, that it was caused by an act or omission, and who was responsible. The court can allow a late action if it seems equitable.
Can I claim for my child in Scotland?
Yes. Under section 17(3) of the Prescription and Limitation (Scotland) Act 1973, any time while the injured person was under legal disability by reason of nonage is disregarded, so a child's claim usually has longer than three years from the incident. Take advice on the exact date.
Will I have to pay the NHS's legal costs if I lose?
In a personal injury claim, which includes clinical negligence, the court must not make an award of expenses against you if you conduct the proceedings in an appropriate manner. That protection can be lost for fraud, manifestly unreasonable behaviour or an abuse of process.
How much can a solicitor take as a success fee in Scotland?
For personal injury claims, the cap is 20% of the first £100,000 of the financial benefit, 10% of the amount between £100,000 and £500,000, and 2.5% above £500,000.
Should I complain before making a claim?
You can do both. NHS bodies must encourage complaints, the Patient Advice and Support Service can help, and the SPSO is the final stage for complaints. A complaint does not replace a legal claim, so keep the three-year time limit in mind.
What is the duty of candour in Scotland?
It is a legal duty on health and care providers. Where an unintended or unexpected incident appears to have resulted in, or could result in, outcomes such as death or severe harm, they must follow a procedure that includes notifying the person and offering an apology and a meeting.
Get help from official, free sources
- Patient Advice and Support Service: help with NHS feedback and complaints in Scotland
- Scottish Public Services Ombudsman (SPSO): the final stage for NHS complaints
- Scottish Legal Aid Board: civil legal aid and eligibility estimator
- Citizens Advice Scotland: free, impartial guidance on your rights
Related guides: medical negligence claims (UK), claiming in Scotland, GP misdiagnosis, cancer misdiagnosis, Glasgow, Edinburgh and Aberdeen.
Official sources used for this guide: Prescription and Limitation (Scotland) Act 1973, s.17; Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, s.8; Success fee regulations 2020; Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016, s.21; Patient Rights (Scotland) Act 2011, s.14; NHS NSS: Central Legal Office. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.