Legal action: Bringing a claim in (clinical) medical negligence in Scotland

Adverse incident or medical negligence

If you have suffered an injury due to medical treatment, this may be referred to as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’.

This does not mean the treatment was necessarily ‘negligent’. Whilst it is possible that your injury may have been avoided by better quality care or safety measures, that on its own may not be enough to satisfy the legal test for negligence. You will only be able to bring a legal claim in medical negligence if you can show that the treatment you received was negligent.

How do I know if my treatment was negligent?

It can be difficult to know if your treatment was negligent. You will usually need to instruct a solicitor to investigate the circumstances of your case. If you do so, make sure they specialise in clinical negligence work and are accredited. Check our Find a Solicitor tool to find accredited specialists in your area.

Sometimes, a healthcare professional will tell you that something went wrong with your care and/or treatment and advise you to seek legal advice. You will only be able to bring a legal claim in clinical negligence if you can show that the medical treatment you received was negligent.

Negligence has a particular meaning in law— there are specific legal tests to help identify if the treatment provided might be considered negligent in the legal sense. More information on the legal tests is provided below.

Clinical negligence claims are often complex cases. In very broad terms, to succeed in your claim you must show that the clinician was negligent (this means the treatment provided fell below an acceptable standard) and that this negligence caused you mental and/or physical injury (causation). Invariably, you will need independent advice from an appropriate medical expert to understand if the treatment you received was negligent and whether you have suffered injury because of that negligence, as opposed to some other reason (such as a progression of your original condition).

Does all negligent treatment result in a claim?

No. It is possible for treatment to be negligent but for you to be unable to bring a legal claim. There are two situations where this is likely to happen.

The first is where you have not suffered injury because of the negligent treatment. An example of this might be where a GP prescribes the wrong medication, you take one dose of the medicine, you do not experience any harm or side effect,s but suspecting the medicine has been incorrectly prescribed you return to the GP and ask them to check the prescription. The GP confirms the medication was wrongly prescribed. The act of prescribing the wrong medication is negligent, but as you did not suffer any harm or injury, you will not be able to bring a legal claim against the GP.

The second situation is where there has been negligence and you have suffered an injury, but the injury is minor and the amount of compensation (damages) to be awarded is expected to be very low. Lawyers often refer to the value of such claims as being de minimis. In these cases, the cost of bringing proceedings is likely to far outweigh the amount to be recovered and cannot be justified, this is often referred to as proportionality.

Should I take legal action?

This is a very personal decision and there is no right or wrong answer. It is about doing what is right for you.

Even if you have been injured as result of medical negligence, you may not want to bring a claim. You are not obliged to bring a claim, and there are other processes available which may help you find answers to your questions, for example the NHS complaints process.

What action can I take?

If you have been injured during medical treatment, your first priority will be to get further treatment to correct the injury. This may involve seeking a second opinion or getting a referral to another hospital.

It may be that you are able to seek compensation by taking legal action if there is medical negligence involved. Whilst this self-help guide explains this process to some extent, you will probably find it helpful to discuss the possibilities of this with one of our caseworkers or a solicitor.

You may then wish to seek a full explanation, an apology, and seek assurances that this mistake will not happen to someone else. If so, the complaints procedure may be better designed to achieve this than legal action, which is mainly about compensation (although might also provide some answers).

NHS complaints

If you decide to make a formal complaint, this is done through the NHS complaints procedure (see our dedicated guide on this). This allows you to make enquiries into what happened to you and may influence your decision on what to do next, including whether to proceed to make a legal claim.

If your complaint relates to a GP or dentist, they might also form part of the NHS complaints procedure, or they may have their own internal complaints process. For complaints in respect of private treatment, there will be again be a process you might wish to complete before considering making a claim. If dissatisfied with the outcome of your complaint, it is often possible to escalate for independent review (such as to the Ombudsman for NHS complaints), but you may wish to seek legal advice to assess your options before doing so.

Making a legal claim

It is important to understand that if you decide to make a legal claim, this will only lead to compensation — the process is not designed to:

• deliver an apology,
• refer the staff involved for disciplinary action, or
• force the hospital to change its practices.

The decision to take legal action should not be taken lightly. It can be costly (although specialist firms might be willing to fund the claim and act on a “no win, no fee” basis), lengthy, and at times stressful to the individual.

You will be asked to explain what happened to you and it may be necessary to repeat the history of events several times during the course of the action. Many people find the litigation process traumatic and upsetting. You will require the services of a specialist medical negligence solicitor, as a medical negligence claim is nearly always complicated. Avma can put you in contact with specialist medical negligence solicitors in Scotland who are members of our Lawyers Service and have signed up to our Code of Conduct.

Limitation (time limits)

You must commence your legal claim by issuing court proceedings within three years from the date when the incident occurred (or when you first realised you had suffered an injury).

In the case of children, the three-year time limit does not apply until their 16th birthday. In other words, they have until the date of their 19th birthday before commencing a legal claim in Scotland. A parent acting as the guardian or a court approved guardian would act as the pursuer.

If a claim involves a patient who is not running their own affairs because of a mental disability, the three-year limitation period does not apply until (and unless) they get over their disability. The normal limitation may apply, however, if someone is acting under a power of attorney or is appointed guardian or judicial factor.

Instructing a solicitor

Most specialist solicitors will offer free initial advice. Every solicitor is required to advise you in writing of the cost of acting for you. It is important to check that the document reflects your understanding of who will be responsible for legal fees and outlays.

The solicitor will need to make an assessment of your situation to decide if you have a strong enough case for them to take on. They will need as much information as possible to do this. You can provide this by keeping a record of everything that is relevant to your treatment and any correspondence you may have if you have been through the complaints procedure. The solicitor will decide if your case has a reasonable chance of success and should be able to give you an idea how much your case may be worth.

Funding options

• Private funding: You may be able to fund the legal claim yourself. Your solicitor will be able to advise you about the cost of bringing a claim.
• Public funding/legal aid: You may be eligible for public funding if you are on a low income. Your solicitor will help assess your eligibility.
• Trade union help: If you are a member of a trade union, you may be eligible for help with the costs of a legal claim from them.
• Legal expenses insurance: Your solicitor might ask you about insurance policies you have, as it is possible that they might include legal expenses which can cover legal work for a medical negligence claim. Often there is a set limit on the legal costs and you may be expected to instruct a solicitor on the insurer’s list rather than necessarily the solicitor you have already contacted. You can appeal to try to ensure your solicitor is sufficiently specialised, however.
• Written speculative fee agreements: These agreements are often referred to as ‘no win, no fee’ agreements and mean that you won’t have to pay your solicitor’s fees if you don’t win the case. If considering such an agreement, it is essential to agree with your solicitor, and to set out in writing, who will be responsible for the outlays in the case and who will pay the costs of the other side if the claim is unsuccessful. Because of the complexity of a medical negligence case, your solicitor may require you to pay for some initial investigations to assess how strong your case is before entering into an agreement. This itself may cost a considerable amount (sometimes up to several thousand pounds), although different solicitors may have access to more attractive funding packages to cover such costs. You should also be advised to take out insurance (after-the-event insurance) to protect you from the possibility of having to pay the other sides costs if you lose the case. These are complex agreements and your solicitor will advise you on this.

How do I prove that I have ground for a legal claim?

Medical negligence claims are often complex cases. For you to be successful in your legal claim, there are two strands of the case: negligence and causation. You must succeed in both:

• Negligence: Whether the clinician is proved guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
• Causation: Whether the breach of duty or negligence of the clinician resulted in an injury to you.

As stated, you must succeed on both fronts — it is not enough to prove that someone did something wrong when treating you, or that the treatment was of poor quality; you must also prove you suffered an injury as a result.

As part of initial investigations, your solicitor will require a supportive opinion from an independent medical expert. They will base their opinion on:

• your medical records,
• your statement about what has happened to you, and
• any other documents supporting your case.

If your solicitor cannot obtain a supportive report from an independent expert, then your case will not succeed.

The award (damages)

Following an assessment of you case, your solicitor will be able to give you a rough idea about the level of compensation you might expect if your case is successful. They will take into account certain social security benefits you get because of your injury (such as employment and support allowance), because this could affect how much compensation you will get.

You can claim compensation for any injuries or losses suffered which were a direct result of the negligent treatment you received. This can include:

• pain and suffering,
• services claims — services the injured party would have given to other family members or receive from them,
• ongoing treatment,
• if you cannot carry out certain activities/hobbies,
• loss of earnings,
• the cost of any extra care or equipment you may require,
• the cost of adapting your home, and
• psychiatric or psychological injury.

Do medical negligence cases always end up in court?

Medical negligence cases often end up in court, but many are resolved before evidence is heard. The majority of cases are settled before the proof (trial). Both sides are encouraged to settle the matter quickly to avoid extra costs.

Summary of main stages of court procedure in Scotland

The following is a summary of the principal stages which a medical negligence case would normally reach once it has been raised in court. It is intended to give you an idea of the main steps involved, but your solicitor will be able to explain the procedure in detail both before a case is raised in court and throughout the duration of the court process.

1. Action raised

If court action is necessary in your case, and the case is deemed to be of sufficient monetary value or complexity, your solicitor will arrange to raise the action in the Court of Session in Edinburgh. As of September 2015, all cases with a value of up to £100,000 will require to be raised in the Sheriff Court. This guide deals with the procedural stages of a Court of Session action, however the procedures in the Sheriff Court are similar.

The action is raised by means of a document known as a summons. The court authorises the summons and there is a period of notice lasting 21 days. The doctor and/or hospital you are suing is known as the defender. They have three days to advise the court that they intend to defend. They then have a further seven days to lodge defences setting out their case.

2. Adjustment period

There is then a period of about eight weeks known as the adjustment period, during which each side considers their case and the other side’s case with their experts and counsel. If your legal advisers think it necessary, your case may be altered in light of the contents of the defences.

This stage of the case can take longer, as either party can ask for a further eight-week extension and even additional extensions.

3. Consultations

The case, as set out in your summons and in the defender’s defences, is known as the open record. When the adjustment period is completed, it becomes a closed record. Your solicitor, as the pursuer, is responsible for putting this closed record together. You would normally expect to have a meeting with your advocate after the defences are received during the open record stage.

You would also normally have a meeting after the record has closed, as you then know the extent of the defender’s case. These meetings are known as consultations. They commonly take place in Edinburgh, but if travelling is a problem, your solicitor should be able to offer more convenient alternatives, including meetings at your home if necessary.

4. Proof before answer (PBA)

The case now reaches the stage where a decision has to be made as to whether or not the case can proceed straight to a full court hearing. This is known as a proof before answer (known as a trial in England and Wales).

At this stage, the court will fix a hearing before a judge who will manage the court action. They will require parties to confirm what issues are capable of agreement or remain in dispute, which experts are instructed, how much time will be required for their evidence, etc. The judge will fix a timetable for steps to be taken by the parties before the case reaches the final hearing.

Occasionally, the defender will want to debate a legal point first. An example of this is challenging the detail of the allegations in your case. Your legal team will consider whether this is justified. It can often be used as a delaying tactic by the defender, and often the pursuer will amend the case to deal with the objection and the case can then proceed straight to a PBA.

The PBA is a full hearing before a single judge on the evidence and law. The other option is a proof as opposed to a PBA. This is very rarely used, as there is no right to legal argument.

It normally takes about one to two years from the closing of the record until the actual hearing date is reached when the PBA takes place. This can depend upon the number of court days required. In the interim, your solicitors will be taking steps to prepare your case and further meetings may be necessary.