GUIDE THE CLAIMS PROCESS
How to Make a Medical Negligence Claim: The Steps Explained
This guide walks through each stage in the order it actually happens, what the timescales are, and where claims most often stop.
Step 1: Initial assessment and funding
The first conversation covers what happened, when you became aware something had gone wrong, and what the consequences have been. It is free, and it carries no obligation to go further.
Two things get checked at this point. First, whether the events described could plausibly meet the legal test, care falling below an acceptable standard, and that failure causing identifiable harm. Second, whether you are within the time limits, which is generally three years, with different rules for children, for people who lack capacity, and where negligence has caused a death.
If the claim is taken on, funding is agreed in writing before anything else happens. Most claims are funded by a conditional fee agreement - no win, no fee.
Step 2: Obtaining your medical records
A full set of records is requested from every provider involved: GP, hospital, ambulance service, imaging and any private clinic. Under the Pre-Action Protocol these should be provided within 40 days of the request, and a healthcare provider that fails to comply, or to explain the delay, can face costs sanctions.
In practice records frequently take longer, and incomplete sets are common. Once received they are put into a chronological, indexed and paginated bundle, a requirement of the Protocol, and the working document the whole claim is built on. Where records appear to be missing, they are chased before anything else proceeds.
Step 3: Independent expert evidence
Independent specialists in the relevant fields are instructed to review the records and answer two distinct questions.
Breach of duty — did the care fall below the standard of a reasonably competent practitioner in that specialty?
Causation — did that failure cause or materially contribute to the harm, or would the same outcome have occurred anyway?
These are often answered by different experts. A cardiologist may address whether a diagnosis should have been made; an oncologist may address what difference earlier treatment would have made. A third expert may be instructed later on condition and prognosis, to value the claim.
This stage is the reason a claim cannot be assessed properly at first contact, and the reason the process takes as long as it does.
Step 4: Letter of Notification
Where it is useful, an early letter puts the healthcare provider on notice that a claim is likely, before the full allegations are ready. It gives them the chance to start their own investigation sooner, and a court may take a dim view of a defendant later requesting extra time if a Letter of Notification went unactioned.
It is not a mandatory step. A copy goes to NHS Resolution or the relevant indemnity provider, and the provider should acknowledge it within 14 days.
Step 5: Letter of Claim
The formal step that starts the pre-action clock. The Letter of Claim sets out a clear chronology of events, the specific allegations of negligence, the injury caused, your current condition and prognosis, and the financial losses claimed.
Where the claim concerns NHS treatment, a copy must go to NHS Resolution as well as to the trust or practice. A settlement offer under Part 36 of the Civil Procedure Rules is sometimes made at this point, which can carry costs consequences later if the other side declines it and does no better at trial.
Step 6: Letter of Response
The provider has four months from the Letter of Claim to give a reasoned answer stating whether liability is admitted, admitted in part, or denied and if denied, why, with supporting evidence. It should also indicate whether they obtained their own expert evidence and in which specialty.
Extensions are common, particularly in complex claims, and a reasonable approach to a reasonable request is expected on both sides. Partial admissions are frequent: a provider may accept that care was substandard while disputing that it caused the harm. That still narrows the issues considerably.
Step 7: Negotiation, mediation and settlement
Most claims resolve here, without a contested trial. Negotiation may follow directly from the Letter of Response, or through a formal settlement meeting between the parties and their lawyers.
Mediation, an independent third party helping both sides reach agreement is one form of alternative dispute resolution, and the parties are expected to consider ADR before turning to the court. Where liability is admitted but the claim will take time to value, an interim payment can sometimes be obtained to meet care, treatment or housing needs before the case concludes.
Step 8: Settlement or trial
A small minority of claims reach a contested trial, where both sides present evidence and a judge decides. If yours is one of them, you would be prepared well in advance and would know what to expect.
Where the claim is on behalf of a child or someone lacking capacity, any settlement must be approved by the court at an infant or protected party approval hearing, and damages are usually held or invested on their behalf.
What can be claimed for?
Damages fall into two categories, and both are assessed.
Category
What it covers
How it is assessed
General damages
Special damages
Pain, suffering and loss of amenity - the injury itself and its effect on your life.
Lost earnings, past and future care, treatment and rehabilitation costs, medication, travel, equipment, home adaptations, and lost pension.
What does no win, no fee mean in practice?
A conditional fee agreement means there is nothing to pay to your solicitor if the claim does not succeed.
If the claim succeeds - the majority of your legal costs are recovered from the other side. A success fee is them deducted from your damages. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, that success fee cannot exceed 25% of damages awarded for pain and suffering and past financial losses. Damages for future losses are not included in that calculation.
If the claim does not succeed - you pay nothing to us. After-the-event insurance is normally arranged ti cover the other side’s costs and disbursements such as expert fees and court fees.
Before you commit - the agreement, the success fee, the insurance arrangement and anything that could be deducted from the damages are all set out in writing and explained.
How long does a medical negligence claim take?
Frequently asked questions
By reference to the Judicial College Guidelines and comparable decided cases.
Calculated from evidence of actual and projected financial loss
Straightforward claims where liability is admitted early may conclude in around 12 to 18 months. Where liability is disputed, two to three years is more typical. Complex claims particularly birth injury cases, where a child's long-term prognosis cannot be assessed until they are older, can take considerably longer, sometimes many years.
The main causes of delay are obtaining complete records, the availability of specialist experts, extensions to the Letter of Response, and any inquest or regulatory investigation running alongside. Timescales vary substantially between cases and no reliable estimate can be given until the expert evidence is in.
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A free initial assessment with a solicitor, followed by requesting your full medical records. Nothing formal is sent to the healthcare provider until the records have been reviewed and independent expert evidence obtained.
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No. A complaint and a claim are separate processes and neither is a prerequisite for the other. A complaint response can produce useful documentation, but making one does not extend any legal deadline.
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They should acknowledge the Letter of Claim within 14 days and provide a full Letter of Response within four months, stating whether liability is admitted or denied. Extensions are commonly requested in complex claims.
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Most claims are resolved without a contested trial. Proceedings are sometimes issued to protect a deadline or to move a stalled case forward, and are frequently settled afterwards. If your case does reach trial, you would be prepared for it well in advance.
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Yes. You are entitled to instruct a different firm, and your file can be transferred. It is worth understanding first what your existing agreement says about costs on transfer, as there may be charges for work already carried out.
Want to know where you stand?
The first conversation costs nothing and commits you to nothing. We will explain what the process would involve in your situation, and tell you if we think there is no claim.