If you have been harmed by medical care in England or Wales, a specific body of medical negligence UK law protects your right to seek redress and defines how that redress is assessed. Understanding the legal framework does not require a law degree, but knowing which Acts and cases apply to your situation puts you in a stronger position when you speak to a specialist.

This page explains the key elements: the legal tests for negligence, the time limits, your rights to your records, and the procedural framework that governs how claims are brought. If you want to know how this law applies to your specific circumstances, the initial assessment at AAA Solicitors is free and commits you to nothing.

What law governs medical negligence in England and Wales?

Medical negligence claims in England and Wales are governed by the law of tort, specifically the tort of negligence, supported by a framework of statutes and binding case law. There is no single "Medical Negligence Act": the law comes from several sources that work together.

The key legislation includes:

  • The Limitation Act 1980: sets the three-year time limit for bringing a claim and defines the date of knowledge exception
  • The CFA Order 2013: governs no win no fee funding and caps the success fee at 25% of past losses and general damages
  • The Civil Procedure Rules: set out the procedure for bringing and defending a claim, including the mandatory Pre-Action Protocol for Clinical Disputes and the Qualified One-way Costs Shifting (QOCS) rules in Part 44
  • The Data Protection Act 2018 and UK GDPR: give you a legal right to access your medical records free of charge
  • The Access to Health Records Act 1990: covers access to records of deceased patients by relatives and personal representatives
  • The NHS Act 2006: establishes the duty of NHS bodies to provide healthcare services, underpinning the duty of care owed to patients in England

These statutes set the framework. The substantive legal tests for what counts as negligence come primarily from case law: three landmark decisions that every clinical negligence claim is measured against.

What are the legal tests for breach of duty?

The legal test for breach of duty in a medical negligence claim is the Bolam test, from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion in the relevant specialty.

A poor outcome from treatment, however serious, does not on its own establish breach. The question the law asks is whether the care fell below the standard a competent practitioner in that specialty would have provided. If a recognised body of medical opinion would have done the same thing, the Bolam test is satisfied and breach is not established.

The Bolam test was refined by Bolitho v City and Hackney Health Authority [1997] UKHL 46, which held that the body of medical opinion a defendant relies on must be capable of withstanding logical analysis. Courts are not required to accept expert evidence uncritically. If a professional opinion is internally inconsistent or fails to properly weigh risks against benefits, a judge can reject it even if a genuine body of clinicians holds that view. This gives the court a meaningful role rather than leaving every breach question entirely to medical witnesses.

For consent and risk disclosure, the law changed fundamentally with Montgomery v Lanarkshire Health Board [2015] UKSC 11. The Supreme Court held that Bolam does not govern what risks a doctor must tell a patient about. Instead, a doctor must disclose any risk that a reasonable patient in the claimant's individual position would consider significant when deciding whether to proceed with treatment. This is a patient-centred standard. A doctor who proceeds without disclosing a material risk can be found negligent in relation to the consequences of that risk materialising, even if the procedure itself was performed to a high standard.

These three decisions define the legal standard against which every clinical negligence claim in England and Wales is assessed.

How does the law set the time limit for making a claim?

Under the Limitation Act 1980, you have three years to bring a medical negligence claim, running from the date of the negligent act or, if later, the date you first knew the harm may have been caused by negligence.

Section 14 of the Act defines the date of knowledge as the date on which you first knew: that the injury was significant; that it was attributable at least in part to an act or omission by the defendant; and the identity of the defendant. In delayed diagnosis cases, the date of knowledge can run from a considerably later point than the original treatment, because the connection between a clinical failure and the eventual harm may only become apparent when the correct diagnosis is eventually made.

The law provides specific protections for certain groups. Children do not begin their three-year clock until they turn 18, so a child harmed at birth has until their 21st birthday to start proceedings in their own right (a parent or guardian can act earlier on their behalf). Adults who lack the mental capacity to conduct legal proceedings are protected for as long as that incapacity continues. Where a patient has died, the three-year period runs from the date of death or the date a close relative first had knowledge that negligence may have contributed, whichever is later.

Under section 33 of the Act, a court has discretion to allow a claim to proceed outside the primary limitation period if it considers it equitable to do so. Section 33 applications are rarely straightforward, and the outcome is uncertain. Acting within the primary three-year period is always the better position. The claims process guide explains how a solicitor works to secure evidence well before that period expires.

What does UK law say about your right to medical records?

Under UK GDPR Article 15 and the Data Protection Act 2018, you have a legal right to access any personal data held about you, including your complete medical records, free of charge and within one calendar month of making a request.

This request is called a Subject Access Request (SAR). The body holding your records, whether a GP surgery, an NHS trust, a private clinic, or a pharmacy, must respond within one calendar month. They cannot charge a fee for a standard request. The records they must provide include GP notes, hospital records, test results, imaging reports, referral letters, out-patient clinic letters, and discharge summaries.

For accessing the medical records of a deceased patient, the Health Records Act 1990 applies. Close relatives and personal representatives of the deceased can apply for access to records created after November 1991. This right can be exercised by a litigation friend acting on behalf of a child or an adult lacking capacity.

Your medical records are the single most important piece of evidence in a clinical negligence claim. A solicitor will request them formally on your behalf as part of the initial instruction, but you can also exercise your SAR right yourself at any time, without engaging a solicitor first. Acting early means the records are more complete and the events are more clearly documented.

How does UK law protect you if your claim is unsuccessful?

Qualified One-way Costs Shifting (QOCS), introduced through the Civil Procedure Rules Part 44, means that if your medical negligence claim is unsuccessful in most circumstances, you cannot be ordered to pay the defendant's legal costs.

Before QOCS was introduced in 2013, losing claimants faced the risk of paying the defendant's legal costs, which in a complex clinical negligence case could reach hundreds of thousands of pounds. That risk prevented many people with valid cases from proceeding. QOCS removed it for most claimants. If the claim fails, the defendant cannot recover their legal costs against you. The one significant exception is a court finding of fundamental dishonesty: if the claim or the conduct of the proceedings is found to be fundamentally dishonest, QOCS protection is lost and costs can be awarded against the claimant.

For your own disbursements (the cost of independent medical expert reports, court fees, and related expenses), after the event (ATE) insurance is typically arranged alongside the Conditional Fee Agreement (CFA). If the claim fails, the ATE insurer meets those costs. If it succeeds, the ATE premium is recovered from the award.

The combined effect is that, for an honest and well-founded claim, the financial risk of proceeding under UK law is substantially lower than in many other legal systems. The CFA funding guide on this site explains how the funding model works in plain terms, including what the 25% success fee means in practice.

The Pre-Action Protocol for Clinical Disputes

Before a clinical negligence claim can reach a court, both parties must follow the Pre-Action Protocol for Clinical Disputes, set out in the Civil Procedure Rules. The Protocol is mandatory and governs how the parties exchange information and attempt to resolve the dispute before proceedings are issued.

The key stages are: your solicitor obtains medical records and commissions an independent expert report; once that report supports the claim, a formal Letter of Claim is sent to the defendant (NHS Resolution for NHS cases, or the relevant insurer for private providers); the defendant has four months to respond with a Letter of Response, setting out which allegations are admitted or denied and the detailed reasons; if the response does not resolve matters, the parties may negotiate, attend mediation, or issue court proceedings.

According to NHS Resolution, 83% of clinical negligence claims in 2024-25 were resolved without court proceedings. The Protocol is the primary reason: the structured exchange of evidence and the four-month response window create the conditions for informed settlement without the cost and delay of a trial. Most claimants never set foot in a courtroom.

How English law compares to other systems

Patients who have researched medical negligence online may have come across information about US medical malpractice law. The two systems are significantly different, and in several ways the English system is more accessible.

English law does not award punitive damages in clinical negligence. Compensation is limited to what is necessary to restore the claimant to the position they would have been in but for the negligence, so far as money can achieve that. Judges, not juries, assess quantum: they use the Judicial College Guidelines as a reference, producing awards that are more consistent and predictable than jury-assessed damages.

QOCS protection means English claimants do not face the "loser pays" risk that deters valid claims in other systems. The CFA model, with its capped success fee and no upfront cost, provides access to specialist representation that would otherwise be unaffordable for most people. The Pre-Action Protocol creates a structured route to resolution that avoids the courtroom in 83% of cases.

The Law Society has flagged proposed reforms to introduce fixed recoverable costs for lower-value clinical negligence claims, which would change the economics of smaller cases. For anyone with a current potential claim, acting sooner rather than later and taking advice before any reforms take effect is always the sensible approach.

Using the law to start your claim

UK law gives you a clear set of rights: the right to access your records, the right to bring a claim within the limitation period, QOCS protection if the claim does not succeed, and funded access to specialist representation through a CFA. Those rights are only useful if you exercise them.

The three-year limitation period runs whether or not you are ready to act. If you are unsure whether you have a valid claim, an early free assessment is always more useful than waiting. A specialist can review the facts, advise on whether the legal tests appear to be met, and explain the next steps without any commitment from you.

AAA Solicitors handles all categories of medical negligence claims in England and Wales on a no win no fee basis. You can check your claim using the online form right now, or call to speak with a specialist directly. The conversation costs nothing and commits you to nothing. The only cost of not having it is not knowing where you stand.