claim for a misdiagnosis
A wrong diagnosis is not automatically negligent, and a correct diagnosis given late is not automatically compensable. Almost every one of these cases is decided on a single question: would being told sooner have changed anything?
The short version
There are three kinds of case: the wrong condition was diagnosed, the condition was missed altogether, or the right diagnosis came too late. All three are judged by the same Scottish test. Getting it wrong is not enough on its own — it must be an error no competent practitioner would have made, and it must have made a difference to the outcome.
Three years to raise an action, running from the injury or from the date you knew what had happened, whichever is later. The start date is the issue that decides most of these cases and it is set out in medical negligence time limits in Scotland.
Cost. Where a success fee agreement is used, section 6(2) of the 2018 Act requires that you pay the solicitor nothing at all, outlays included, apart from the success fee, whether or not you win. Civil legal aid also remains available in Scotland for medical negligence, which it is not in England and Wales.
Who you claim against depends on where you were treated. Hospital care is defended centrally under the Clinical Negligence and Other Risks Indemnity Scheme; general practitioners are usually independent contractors carrying their own indemnity. Establishing which applies comes first.
The test is Scottish, and it is Hunter v Hanley
The standard is set by Hunter v Hanley 1955 SC 200, decided in Scotland two years before the English case everyone quotes. There must be a usual and normal practice, the practitioner must have departed from it, and the course actually taken must be one that no professional of ordinary skill would have taken acting with ordinary care.
It is frequently said on Scottish websites that “Bolam does not apply in Scotland”. That is too strong, and people rely on it. Scotland has its own authority and does not need to borrow an English one, but the standard is the same standard: in McCulloch v Forth Valley Health Board [2023] UKSC 26, at paragraph 56, the Supreme Court referred to “the professional practice test found in Hunter v Hanley and Bolam” as one test expressed in each jurisdiction by its own case. What is true is that this test does not govern the separate question of what a patient should have been told.
That third limb does the work. Diagnosis is genuinely difficult, symptoms overlap, and a doctor who reaches a reasonable conclusion that later proves wrong has not necessarily been negligent. A missed fracture on a film that three radiologists would also have missed is a misfortune. One that any competent radiologist would have seen is something else.
Why most of these cases turn on causation
Proving the error is half of it. You must also prove that the error caused harm you would not otherwise have suffered. In a delayed diagnosis case that means showing what would have happened had the diagnosis been made when it should have been.
The hardest question in these claims
If a cancer was diagnosed four months late, the case does not succeed because of the four months. It succeeds if those four months changed the treatment, the prognosis or the outcome. Where the disease was already advanced and the outcome would have been the same, there may be a real error and no compensable loss. A solicitor who does this work regularly will tell you that early. One who does not may spend a great deal of your time finding out.
This is why these cases usually need expert evidence from more than one specialty: one expert on whether the care fell below standard, and another on what difference it made.
Where misdiagnosis most often arises
The other route: what you were told
Where the treatment itself is defensible, the case may still succeed on consent. Montgomery v Lanarkshire Health Board [2015] UKSC 11 was a Scottish appeal and it changed the law across the United Kingdom. A patient must be told of any material risk and of reasonable alternatives, judged by what this particular patient would attach significance to rather than by what doctors think patients need to know. Claims that fail on treatment quite often succeed on consent.
Time limits
Three years from knowledge, not from the mistake
Time runs from the date you first knew, or could reasonably have known, that you had suffered a significant injury attributable to negligence. In misdiagnosis cases that is often much later than the appointment itself, because the error only becomes apparent when the correct diagnosis arrives. For a child, time runs from the sixteenth birthday. Where someone lacks capacity, time may not run at all.
Who you are actually claiming against
Hospital care in Scotland is met through the Clinical Negligence and Other Risks Indemnity Scheme, which means a centrally organised defence conducted by solicitors who do nothing else. General practitioners are usually independent contractors with their own indemnity arrangements. Dentists and opticians in private practice are different again. Establishing who the defender is comes before anything else, and getting it wrong wastes months.
What to do now
- Request your medical records, including the GP record and any imaging reports. You are entitled to them.
- Write down the chronology while it is fresh: when you first presented, what you said, what you were told, and when the correct diagnosis came.
- Consider a complaint to the board in parallel, because the response often sets out the clinical reasoning.
- Take advice on the time limit early. Investigating one of these properly takes many months.
A note on this page
This is general information about how the law works in Scotland. It is not advice about your situation and it cannot be, because we do not know your circumstances. Nothing here should be relied on as a substitute for speaking to a solicitor about your own case.
Tell us what has happened
We accept enquiries about personal injury and medical negligence claims. If you send us your details, we will read your enquiry and, where it falls within an area we cover, pass it to one Scottish solicitor practice that handles this type of work so that they can contact you.
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