Sarah John's
Legal Writer
When something goes wrong with your care, and you’re left worse off, it can feel confusing and unfair. If you or someone close to you has been hurt as a result of a serious medical error, you may be wondering what to do next. Whether it was a medical misdiagnosis, poor treatment during surgery, or another type of error, you may have the right to seek compensation.
But making hospital negligence claims isn’t always easy—especially if it’s your first time. In Scotland, the process can be time-consuming and involves clear steps, such as gathering your records and consulting with legal experts. In this article, we will walk you through the steps of making a medical negligence claim so you know what to expect and how to proceed with confidence.
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Can I Make a Medical Negligence Claim?
If you have been injured as a result of a mistake made by a doctor, nurse, or another healthcare worker, you may be able to make a claim. But first, there are several things to consider.
To make a claim, you must demonstrate that the care you received was below what you should have expected from a skilled professional. In other words, someone failed to do their job properly, which caused you injury. That harm could have been physical or emotional or had an impact on your ability to work or enjoy daily life.
There is also a time limit. In most cases, you have three years from when the problem happened—or when you first noticed anything was wrong. If the claim involves a minor or someone who is unable to manage their own legal affairs, the time limit might be different.
If you’re unsure, consult with a solicitor who specialises in this area. They can assess your case and advise you on whether or not you should pursue it further.
Do You Have Grounds for a Medical Negligence Case?
Not every medical mistake means you can make a legal claim—but if you’ve been seriously injured as a result of poor care, you have a valid claim. Here are common situations that may give you grounds to start a claim:
- Medical misdiagnosis – This happens when a healthcare worker misses or wrongly identifies your condition. It can delay the right treatment and make things worse.
- Surgical negligence – If a mistake is made during surgery, such as operating in the wrong area or leaving something behind, and it causes further harm, that may be considered negligence.
- Prescription errors – Receiving the incorrect medication or dose can result in dangerous side effects. This includes mix-ups at pharmacies and during hospital stays.
- Birth injury – If a mother or infant is injured during childbirth as a result of mistakes, such as failing to recognise warning signs or failing to monitor properly, this may be considered negligence.
If any of these scenarios sound familiar, it may be time to consult with a solicitor who specialises in medical negligence claims in Scotland
What Is a Medical Professional’s Duty of Care?
A duty of care requires a medical provider to look after you properly and make safe, responsible choices about your treatment. It applies to anybody providing care, including doctors, nurses, and therapists. This duty begins when a professional relationship is formed. Once that happens, they are expected to act in your best interests and provide the level of care that you would reasonably expect from someone in their position.
How to Recognise a Breach of Duty in Medical Treatment?
A breach of duty happens when a healthcare professional provides care that falls short of the standard you would expect from someone in their position. This could include ignoring important symptoms, giving the wrong treatment, or failing to act quickly when necessary. To spot a breach, compare what happened in your situation to how a skilled expert would have acted. If the care you received fell clearly below that level and caused you harm, there may have been a breach.
In Scotland, a solicitor can help you review medical records and get expert opinions to determine whether something went wrong and whether it could lead to a claim.
How to Prove a Breach of Duty in a Medical Negligence Claim?
To prove a breach of duty, you must demonstrate that the care you received did not meet the typical standard expected of a skilled medical professional. This is accomplished by comparing what happened in your situation to what should have occurred. A lawyer will often ask an independent medical expert to analyse your records and provide an opinion on whether mistakes were made and if those mistakes caused harm.
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Step-by-Step Guide to Making a medical negligence claim process
Step 1: Speak to a Specialist Medical Negligence Solicitor
When making a medical negligence claim, the first step is to consult with a solicitor who handles similar Personal Injury Claims In Scotland on a regular basis. This step is critical since medical claims can be complicated, and you’ll need someone who understands both legal regulations and medical terminology.
When picking a solicitor, search for someone with extensive experience and a proven track record in this field. Check if they’re accredited by organisations such as the SRA, APIL, or AvMA. Reviews and word-of-mouth can also help you select someone trustworthy.
It’s also critical that they explain things clearly and take the time to hear your concerns. Once you’ve found the right person, your first meeting will help them understand what happened and whether you have a valid case.
Step 2: Understanding Your Claim Funding Options
Paying for a medical negligence claim may seem daunting, but there are several ways to handle the cost—especially with the right solicitor helping you choose what fits best.
The most common option is a no win, no fee agreement. If your case is unsuccessful, you will not be required to pay any legal expenses. If you do win, most legal costs are covered by the other side, and only a small, capped amount comes from your compensation.
Legal aid is another option, although it is only available in very specific circumstances, such as for children with severe birth injuries. It depends on your financial status and whether your case meets the criteria.
You may already have legal expenses insurance, which is commonly included in home or car insurance coverage. It’s important to check this, because this could cover some or all of your legal expenses.
During your initial visit, your solicitor will go over each choice with you, explain what is available to you, and help you decide which one works best. Choosing the right funding option can alleviate financial concerns and allow you to focus on your case.
Step 3: Requesting and Reviewing Your Medical Records
Once you’ve chosen a solicitor, one of the first things they’ll do is collect your medical documents. These documents are critical for understanding what happened, who was involved, and whether anything went wrong with your care.
You have the legal right to see your medical records under data protection legislation. Your lawyers will help you in submitting a formal request, known as a Subject Access Request (SAR), to the hospital, GP practice or clinic where you had treatment. You will need to provide your name, date of birth, and NHS number, as well as evidence of identity. Most requests are answered within a month, although more time may be needed in complex cases.
When the records arrive, your solicitor will carefully review them. They’ll search for indicators of mistakes, missing diagnoses, or poor care. These documents help build a clear picture of what happened and whether the care you received fell below expected standards. This step lays the foundation for your claim and determines whether there is a good case to proceed.
Step 4: Independent Medical Expert Evaluation
After analysing your data, your solicitor will request an independent medical expert to evaluate your case. This expert isn’t involved in your care; they’re brought in to provide an honest, professional opinion.
Their job is to determine whether the care you received fell below acceptable standards and if this caused or contributed to your harm. They will also examine the severity of your injuries and the implications for your future.
To do this, the expert will review your records and any other important information. Then, they’ll write a report with their findings.
Keep in mind that the expert may not always agree there was negligence. If this happens, your solicitor will explain what it means and walk you through your next actions.
Step 5: Calculating the Value of Your Claim
Once the evidence is in place, your solicitor will start to assess the value of your claim. This is based on the harm you’ve suffered and how it’s affected your life.
There are two parts to this. General damages include pain, suffering, and any loss of enjoyment in your life—whether it’s being unable to work, play with your children, or do the activities you enjoy.
Special damages consider the financial side. This can include treatment fees, travel to appointments, lost wages, or house modifications, such as installing a ramp or hiring help.
The value of your claim will also depend on how serious your injuries are, how long they’ll last, your age, and your future needs. Your solicitor will provide you with an estimate of compensation based on these considerations. This can help direct negotiations or, if necessary, support your case in court.
Every claim is unique; thus, the amount will be based on your own personal experience and loss.
Step 6: Submitting the Case to the Defendant
After gathering all of the proof, your solicitor will send the opposite side a letter of claim. This letter outlines everything about your case, including what went wrong, how you were harmed, the documentation supporting your claim, and the amount of compensation you’re seeking.
It is normally forwarded to the legal team of the NHS or private healthcare provider involved. This is the formal step that informs them that you are taking legal action. Once they get the letter, they must confirm within 14 days that they received it and are investigating the situation.
This part starts the official back-and-forth, in which the opposing party will analyse your claim and decide how they wish to respond.
Step 7: Defendant’s Response – Admission or Denial of Liability
After receiving your letter of claim, the other party has up to four months to respond. During that time, they will check into the facts, analyse your medical records, gather their own expert opinions, and examine the evidence you’ve provided.
Their reply, called the letter of response, will tell you whether they accept or deny responsibility. If they accept fault, either totally or partially, your solicitor can begin negotiating a settlement based on the strength of your case and the amount you are owed.
If they deny liability, your solicitor will carefully review their response. You may need to gather additional evidence or seek another expert’s opinion. Depending on the strength of your case, your solicitor will advise you whether to continue negotiating or prepare for court.
In some cases, the defendant may also make a settlement offer at this stage, which your solicitor will help you in determining if it’s fair or requires further negotiation.
Step 8: Preparing for Court If a Settlement Isn’t Reached
If the other party rejects responsibility or negotiations break down, you may need to take your case to court. Most medical negligence cases in Scotland are resolved before a trial, but it is still critical to be prepared just in case.
Your solicitor will start by formally beginning court proceedings. This includes submitting documentation outlining what went wrong, the harm you’ve suffered, and the amount of compensation you seek. These papers are then forwarded to the opposing party, who must respond with their defence and any evidence they plan to use.
Next, your solicitor will help you gather anything else you might need—more medical opinions, financial proof, or witness statements. They will also collaborate with medical professionals to build a clear and strong case.
Even after the court proceedings begin, a settlement is still possible. Your solicitor will keep you informed and guide you through the whole process, making sure that your voice is heard.
Step 9: What Happens During a Medical Negligence Trial
If your case goes to trial, your solicitor will represent you in court or hire a barrister—someone who has experience defending cases in court—to represent you. While most cases resolve before this point, it is important to understand what happens if yours does not.
At the trial, both sides will present their version of events. This includes opening statements, testimony from witnesses, and expert reports. The barrister will explain how the care you received was inadequate and how it caused you harm. The opposing party will present their defence and attempt to refute the claim.
After hearing everything, the judge will make a ruling. If they find that the care was negligent, they will determine the amount of compensation you should receive.
Either side can appeal the decision, but only under certain conditions.
While trials can be long and uncertain, being well-prepared with good evidence increases your chances of winning. Your legal team will be with you every step of the medical negligence claims process.
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Legal Costs: Who Pays the Fees in a Medical Negligence Claim?
Legal expenses can be a major concern; however, many medical negligence claims in Scotland are handled on a no-win, no-fee basis. This means you will not have to pay your solicitor if your claim fails.
If you win, your solicitor’s fees are usually covered by the other party. A small amount of your compensation—no more than 20%—may be used to cover legal fees, but some firms charge less than others.
If you are a member of a trade union, you may be eligible for extra support with legal fees, so ask your representative. Your solicitor will clearly explain all of the costs at the outset so you know what to expect.
How Long Do You Have to Make a Medical Negligence Claim?
In Scotland, the medical negligence claims time limit is usually three years. This countdown can begin on the date the damage occurred or when you first discovered the harm was caused by medical negligence.
For example, if you had surgery years ago and only recently discovered that it was done incorrectly, you may still be allowed to make a claim—as long as it’s within three years of when you were made aware of the mistake.
It’s always a good idea to contact a solicitor as soon as possible to avoid missing out on an opportunity to act.
Get in Touch for Expert Legal Support
If you have been a victim of medical negligence, you must move swiftly and seek appropriate help. The medical negligence claim procedure can be confusing, but with skilled legal assistance, you can take each step with confidence.
At HDClaims, we’re here to help you navigate the claims process and get the money and justice you deserve. Our panel of solicitors provide no-win, no-fee agreements, ensuring that you won’t pay any fees unless your case is successful.
To speak with a specialist solicitor from our panel, call our 24-hour claims line at 0141 280 1112, email contact@hdclaims.co.uk, or fill out our online inquiry form. We’re here to assist you every step of the way.
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