Do you have a claim?

A medical negligence claim is not a claim that something went wrong. Medicine carries risk, and a poor result is not by itself evidence of anything. Two separate things have to be established, and they fail independently of each other.

The first is breach of duty: that the treatment fell below the standard the law requires of a doctor, nurse, dentist or other clinician in that field. Scotland applies its own test, from a case decided in Edinburgh in 1955, and it is not the English test.

The second is causation: that the failure made a difference. If the same harm would have happened anyway, there is no claim, however poor the care was. Causation is where most claims that fail actually fail.

If you want the law itself rather than the summary, we set it out in full in our guide to medical negligence law in Scotland.

No win no fee medical negligence in Scotland

Two routes exist in Scotland that do not exist in the same form elsewhere.

Legal aid is still available for medical negligence in Scotland. It was withdrawn for these claims in England and Wales in 2013 and it was not withdrawn here. Whether you qualify depends on your means and on the merits of the claim, and the Scottish Legal Aid Board publishes a list of firms registered for this category of work.

Success fee agreements, still often called speculative fee agreements, are the Scottish version of no win no fee. Where one is used for a personal injury or medical negligence claim, section 6(2) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 requires that you are not liable to pay the solicitor anything, outlays included, apart from the success fee, and that this holds whether or not you obtain damages. The success fee comes out of your compensation rather than being added to it, and is capped at 20 per cent of the first £100,000, 10 per cent of anything between £100,000 and £500,000, and 2.5 per cent above £500,000. If the claim fails you will not ordinarily pay the other side’s expenses either, because Scotland has had qualified one-way costs shifting since 30th June 2021.

Medical negligence differs from an ordinary injury claim in one practical respect worth knowing at the outset. Liability usually turns on what a responsible body of practitioners would have done, which requires independent expert evidence from a consultant in the same speciality. That evidence is expensive, and it is the reason these claims are investigated slowly and the reason a firm will want the medical records before it says anything at all.

We do not fund claims and we do not offer either arrangement ourselves. Which of them is open to you is a matter for the firm that takes the case on, and it is one of the first things to ask them. The mechanics are set out in full in what no win no fee actually means in Scotland.

How long you have

The general rule is three years, running from the date you knew, or could reasonably have found out, that you had been harmed and that the harm was attributable to the treatment. That is not always the date of the treatment itself, and it is not always obvious.

Three years is shorter and less forgiving than most people expect, and the court’s power to allow a late claim is discretionary rather than something to rely on. If you think you may be close to the limit, that is a reason to take advice now rather than to read further. Different rules apply where the person harmed was a child or lacked capacity, and where someone has died.

What happens if you send us an enquiry

It is worth being plain about what this service is, because it is not what most sites of this kind are.

ineedalawyerto.com is a trading name of Rooney Family Law Limited, solicitors, regulated by the Law Society of Scotland. We are a family law firm. We do not conduct medical negligence claims ourselves and we will not be acting for you. What we do is pass your enquiry to one firm on our panel that handles this work.

Your details go to one member firm, never to several, and nothing is sent until you confirm. We tell you the firm’s name once it has confirmed that it can take your case on. We are paid the same share by every firm on the panel, so we have no financial reason to send an enquiry to one rather than another. Our panel is not the whole Scottish profession and you may instruct any solicitor you wish; you can check any Scottish solicitor on the Law Society of Scotland’s public roll.

The questions people actually ask

Can I claim against the NHS in Scotland? Yes. The health board is sued by its own statutory name. There is nothing here resembling NHS Resolution, and general practice is usually a different matter again, because a general practitioner is not employed by the health board.

Is complaining the same as claiming? No, and the two run on different tracks. Complaining does not stop the three-year clock, and a complaint response is not a substitute for evidence. See complaining about NHS treatment.

What if I was not told about a risk? That is a different kind of claim from a claim about how the treatment was carried out, and Scots law on consent moved significantly in recent years. It is dealt with in the law guide.

What is my claim worth? Nobody can tell you that from a web page, and anybody who does is guessing. It depends on the injury, on how it has affected your life and earnings, and on what can be proved. See how compensation is worked out.

What if I lose? Expenses are the real question, and the answer depends on how the claim is funded. See what happens if I lose my case.

Someone has died. Is it different? Yes. Different claims arise, different people can bring them, and the time limits work differently. Take advice quickly.

Particular kinds of claim

The principles above apply throughout, but the evidence differs: misdiagnosis, surgical error, birth injury, dental negligence and claims against the NHS.