A guide to clinical negligence claims in Scotland

Making a clinical negligence claim in Scotland involves several steps to ensure that you are compensated for any harm caused by medical malpractice.


Clinical negligence can take many forms, and the impact on patients can be severe, leading to prolonged suffering, delays in treatment or even life-threatening situations.

If you believe you have been a victim of clinical negligence, it is important to seek legal advice from a specialist solicitor who can help you navigate the process of making a claim and secure compensation for the harm suffered.

Below is a detailed guide on how to proceed.


Guide to Clinical Negligence


Step-by-step guide to making a clinical negligence claim in Scotland


1) Seek medical attention

If you believe you have suffered harm due to clinical negligence, first ensure that you receive the necessary medical treatment to address your health issues immediately.


2) Gather evidence

  • Request copies of all your medical records from the healthcare providers involved.
  • Keep detailed records of all treatments, consultations, and any other interactions with healthcare professionals.
  • Write down how the negligence has affected your health, daily life, and ability to work. Writing a diary each day can help you recall if needed in future.


3) Contact a Solicitor

At Oakwood Scotland, we specialise in clinical negligence claims and offer a free consultation to assess your case.


4) Initial assessment

Our team of experienced clinical negligence solicitors will review your medical records and the circumstances surrounding your treatment. We may seek an independent medical expert’s opinion to determine if the standard of care was breached.

5) Letter of Claim

If there is a valid claim, we will draft a detailed letter of claim to the healthcare provider outlining the allegations of negligence. The letter will outline the facts of the case, the alleged breaches of duty, the injuries sustained, and the impact the negligence has had on your life.

6) Defendant’s response

  • The healthcare provider is typically required to acknowledge a Letter of Claim within 14 days and to provide a reasoned answer within 4 months.
  • They may admit liability, deny the claim, or request further information.

7) Negotiation and settlement

  • If liability is admitted, your solicitor will negotiate a settlement amount that compensates you for your losses, including medical expenses, lost earnings, and pain and suffering.
  • Alternative Dispute Resolution: Mediation or other forms of dispute resolution might be used to reach an agreement without going to court.

8) Issuing Court Proceedings

  • If a settlement cannot be reached, your solicitor will file court proceedings. In Scotland, this would typically involve the Court of Session or the Sheriff Court, depending on the value and complexity of the claim.
  • Before court proceedings, pre-action protocols must be followed, which involve detailed exchanges of information and documentation.

9) Court Proceedings

  • The case will proceed through various stages, including pleadings, evidence gathering, and potentially a trial.
  • It must be proven on the balance of probabilities that the healthcare provider’s negligence caused your injuries.

10) Judgment or Settlement

  • If the case goes to trial, the court will make a judgment. If successful, the court will award damages.
  • Even during litigation, settlement negotiations can continue, and cases often settle before reaching a final judgment.


How long do I have to make a clinical negligence claim?

If you believe you have suffered as a result of clinical negligence it is important to act promptly. There is a three-year time limit from the date of the incident or from when you became aware of the injury to make a claim.


Types of clinical negligence

Clinical negligence, also known as medical negligence or malpractice, occurs when healthcare professionals fail to provide the standard of care expected, resulting in harm to the patient. Here are various types of clinical negligence:


Misdiagnosis or delayed diagnosis

  • Incorrect Diagnosis – Diagnosing a patient with the wrong condition, leading to incorrect or harmful treatments.
  • Delayed Diagnosis – Failing to diagnose a condition promptly, can worsen the patient’s prognosis or limit treatment options.

Surgical errors

  • Incorrect Surgery – Performing surgery on the wrong part of the body.
  • Surgical Instrument Left Inside – Leaving surgical instruments or materials inside the patient’s body.
  • Surgical Procedure Errorr – Errors during the procedure itself, such as damaging internal organs.

Medication errors

  • Incorrect Medication – Prescribing or administering the wrong medication.
  • Dosage Errors – Prescribing or administering an incorrect dosage of medication.
  • Allergic Reactions – Failing to check for or recognise known allergies.

Anesthesia errors

  • Incorrect Dosage – Administering too much or too little anaesthesia.
  • Failure to Monitor – Not properly monitoring the patient during anaesthesia.
  • Adverse Reactions – Failing to recognise or manage adverse reactions to anaesthesia.

Birth Injuries

  • Injury to the Mother – Complications during childbirth due to negligent care.
  • Injury to the Baby – Birth injuries such as cerebral palsy, Erb’s palsy, or brain damage due to mismanagement during delivery.

Failure to treat

  • Ignoring Symptoms – Failing to act on or investigate reported symptoms.
  • Delayed Treatment – Not providing timely treatment once a condition is diagnosed.

Infection control failures

  • Hospital-Acquired Infections – Contracting infections due to unsanitary conditions or poor infection control practices in healthcare settings.

Nursing and care home negligence

  • Poor Standards of Care – Neglect or substandard care in nursing homes or care facilities leading to injuries or health deterioration.
  • Medication Errors – Incorrect administration of medications in care facilities.

Accident and Emergency (A&E) errors

  • Triage Errors – Failing to correctly prioritise patients based on the severity of their condition.
  • Treatment Errors – Mistakes in treating emergencies due to rushed or negligent care.

Dental negligence

  • Incorrect Dental Procedures – Performing the wrong dental procedure or damaging teeth, gums, or jaw during treatment.
  • Misdiagnosis – Incorrectly diagnosing dental conditions leading to unnecessary or improper treatments.


How much compensation will I get for clinical negligence?

It is often difficult to value Negligence claims at their outset, given the complexities involved however we will pursue two forms of compensation for you:

General damages – An award of money for the pain and suffering you have endured as a result of the negligence.

Special damages – An award for all of your out-of-pocket expenses such as travel expenses, medication costs, loss of earnings, and treatment costs both past and future.

This list is not exhaustive and is very case-specific. Our specialist team will be able to advise further.


How long do I have to make a medical negligence claim?

Claims of this nature are subject to a three-year limitation period. This means claims must be commenced within the Courts within three years of either the date the negligent act occurred or the date you became aware that negligence had occurred.

In cases involving deceased victims, this limitation period commences from the date of death and in cases involving minors, the limitation period starts when they reach their 18th birthday.

The law surrounding limitation periods is complex – our specialist team will be able to advise further.


If you believe you have suffered as a result of Clinical Negligence, get in touch with Oakwood Scotland today. Our team of experienced solicitors will offer a free consultation and guide you through the claims process.


Further reading

For information about clinical negligence, check out our resource.



Get in touch today for a no-obligation consultation. Choose one of the methods on this page, or call us on 0141 406 3324 to find out how we can help you with your enquiry.

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