Medical Negligence — No Win No Fee

What Is Medical Negligence?

Direct Answer: Medical negligence occurs when a healthcare professional's treatment falls below the accepted standard of care (the Bolam test), causing injury. Claims against NHS and private providers can be brought on a no win no fee CFA. The limitation period is 3 years from the date of injury or date of knowledge.

Medical negligence (also referred to as clinical negligence) arises when a healthcare professional — whether a GP, surgeon, consultant, nurse, dentist, or other clinician — provides treatment that falls below the standard of care reasonably expected, and that substandard treatment causes injury or harm to the patient. The claim may be against the individual practitioner, an NHS Trust, or a private healthcare provider.

The Legal Standard — Bolam and Bolitho

The standard of care in English law is set by the Bolam test (Bolam v Friern Hospital Management Committee [1957]): a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular art.

This was refined by Bolitho (Bolitho v City and Hackney Health Authority [1998]): the court may assess whether the body of opinion relied upon has a logical basis and has properly weighed risks against benefits. This prevents a purely deferential approach to medical opinion.

Common Types of Medical Negligence

• Surgical errors — wrong-site surgery, nerve damage, retained instruments
• Misdiagnosis or delayed diagnosis — failure to diagnose cancer, stroke, or other serious conditions
• Birth injuries — cerebral palsy, Erb's palsy, hypoxic brain injury due to birth mismanagement
• Medication errors — wrong drug, wrong dose, contraindicated combinations
• Failure to obtain informed consent — proceeding without properly explaining risks (Montgomery v Lanarkshire)
• A&E negligence — errors in emergency treatment or triage

NHS Resolution

Claims against NHS bodies in England are managed by NHS Resolution (formerly the NHS Litigation Authority). NHS Resolution handles the defence of claims, manages the Clinical Negligence Scheme for Trusts (CNST), and publishes annual reports on claims data. In 2022/23, NHS Resolution received over 13,000 new clinical negligence claims.

No Win No Fee for Medical Negligence

Medical negligence claims can be pursued under a Conditional Fee Agreement. However, because these cases require substantial upfront investment in expert evidence (often multiple expert reports from different specialities), solicitors are selective. Disbursements for medical negligence cases can run into thousands of pounds, making ATE insurance particularly important.