The vast majority of medical negligence claims in England and Wales involve NHS care. An NHS claim follows a specific process: you sue the trust, not the individual clinician, and the claim is defended by a specialist government body called NHS Resolution. Whether the negligence occurred in a GP surgery, an NHS hospital, a mental health trust, or an NHS-commissioned community service, the path is the same. This guide explains who you claim against, how NHS Resolution operates, and what the process looks like from first instruction to settlement.
Nothing here is legal advice. If you believe you have a claim arising from NHS treatment, speaking with a specialist solicitor as early as possible gives you the best position on evidence, funding, and time limits.
Who do you claim against in an NHS claim?
In an NHS medical negligence claim, you claim against the NHS trust, not the individual clinician who treated you. The consultant, GP, midwife, or nurse whose actions are in question is not personally named as a defendant. The trust that employed them carries the legal liability.
This matters in practice because NHS trusts are defended by NHS Resolution (formerly the NHS Litigation Authority), a government arm's-length body that manages clinical negligence claims on behalf of the entire NHS in England through a central insurance scheme called the Clinical Negligence Scheme for Trusts (CNST). From the moment a claim is notified, NHS Resolution assigns it to a specialist panel solicitor. You are not dealing with the trust's own administration; you are dealing with an experienced clinical negligence defence team.
Understanding this shapes how a well-prepared claim is put together. A letter addressed to the trust's complaints department is not the same as a formal Letter of Claim under the Pre-Action Protocol for Clinical Disputes. The two routes are different in purpose, in legal effect, and in what they can achieve.
What is NHS Resolution?
NHS Resolution is the government body responsible for managing negligence claims against NHS trusts in England. It operates the CNST scheme, under which trusts pay annual contributions and NHS Resolution funds both the defence of claims and the payment of settlements.
According to NHS Resolution, the NHS received approximately 15,000 new clinical negligence claims in that year. The total value of outstanding clinical negligence liabilities on the NHS balance sheet stood at approximately £14 billion. Around 70% of cases are resolved without the need for court proceedings.
These figures illustrate two things. First, clinical negligence claims against the NHS are not unusual: they are a normal part of how patients seek redress for avoidable harm. Second, the organisation defending those claims is experienced, well-resourced, and operates at significant scale. A claimant without specialist legal representation is at a material disadvantage.
Can you complain to the NHS instead of claiming?
You can complain to the NHS, and doing so may provide valuable information. However, the NHS complaints process and a legal negligence claim are different in purpose and in what they can deliver.
The NHS complaints process operates in three tiers. The first is the Patient Advice and Liaison Service (PALS), which offers informal support and can help resolve concerns while you are still receiving treatment. The second is a formal complaint to the trust, which the trust must investigate and respond to, typically within 25 working days. The third, if you remain unsatisfied, is a complaint to the Parliamentary and Health Service Ombudsman, which can investigate and make recommendations.
What the complaints process can achieve: an explanation of what happened, an acknowledgement that something went wrong, an apology, and recommendations for service improvement. In some cases the trust's own investigation produces documents and findings that are useful evidence in a legal claim.
What the complaints process cannot achieve: financial compensation for the harm you suffered. Only a legal claim can deliver that.
The two routes are not mutually exclusive. You can pursue a formal complaint and a legal claim simultaneously, or in sequence. Many claimants find that the trust's written response to a formal complaint, even where it does not admit fault, contains useful admissions of fact that a solicitor can work with.
Does an NHS complaint affect your legal claim?
A formal complaint does not stop the limitation clock. Under the Limitation Act, the three-year period for bringing a medical negligence claim runs from the date of the negligent act or the date of knowledge, regardless of whether a complaint is being investigated.
This is an important practical point. Some patients wait for the complaints process to conclude before instructing a solicitor, assuming the complaint must come first. There is no such requirement. If the complaints process takes 18 months, 18 months of your limitation period has elapsed. If the trust's response is unsatisfactory and you then want to pursue a legal claim, you may have far less time than you assumed.
The right approach is to take legal advice early, while the complaint is ongoing if necessary. A solicitor can advise on whether to pursue both routes, whether the complaint responses contain useful material, and how to manage the two processes together without prejudicing either.
How does an NHS claim work step by step?
An NHS medical negligence claim follows the clinical disputes protocol before any court proceedings are issued. The protocol sets out the steps both parties must follow to encourage early resolution and exchange of information.
The broad sequence is:
- Instruct a solicitor. Your solicitor obtains a funding agreement (typically a CFA) and begins gathering evidence.
- Obtain medical records. The trust must provide your records within 40 days of a subject access request. Your solicitor requests these in full, indexed and paginated.
- Commission an independent expert report. A medical expert in the relevant specialty reviews the records and provides a report addressing breach of duty and causation.
- Send a Letter of Claim. Once expert evidence supports the claim, your solicitor sends a formal Letter of Claim to the trust. This sets out the facts alleged, the allegations of negligence, the injuries and losses, and a financial summary.
- NHS Resolution responds. The trust has four months from receipt of the Letter of Claim to provide a Letter of Response. This must set out which allegations are admitted, which are denied, and the reasons for any denial.
- Negotiate or issue proceedings. If the Letter of Response denies liability or the parties cannot agree on quantum, your solicitor either continues negotiating or issues proceedings in the County Court or High Court.
The full claims process from first instruction to settlement is covered in detail on this site.
After the Letter of Claim: negotiation and proceedings
NHS Resolution's Letter of Response sets the direction of the claim. A full admission of liability moves the case to negotiating the value of your losses. A full denial means the parties prepare for litigation. A partial admission (for example, admitting breach but disputing causation) narrows the issues in dispute without resolving the claim.
Most NHS negligence claims settle before trial. NHS Resolution's stated policy is to settle claims where the merits clearly favour the claimant and to contest claims where liability or causation is genuinely in dispute. In practice, settlement discussions typically begin in earnest after both sides have exchanged expert evidence. Mediation is increasingly used for high-value claims where the parties are apart on quantum but broadly aligned on liability.
Where liability is admitted early, it is possible to apply for an interim payment: a lump sum paid on account of the final award, which can fund care and adaptation costs while the full quantum is assessed. Interim payments are particularly relevant in catastrophic injury cases where ongoing care needs are immediate and significant.
How long does an NHS negligence claim take?
Straightforward NHS negligence claims typically settle within 18 months to two years of a solicitor being instructed. This assumes liability is not heavily contested and the quantum of loss is not exceptionally complex.
Complex claims, particularly those involving catastrophic injuries, disputed causation, or significant future loss schedules, routinely take three to five years. Birth injury claims involving lifelong care needs are among the longest, partly because the full extent of the child's future needs may take years to assess with confidence.
These timelines should not be treated as reasons to delay instructing a solicitor. The earlier a solicitor is instructed, the earlier records are secured, experts are identified, and the claim is properly framed.
Claiming against a private provider rather than the NHS
If the negligent treatment took place at a private hospital or clinic rather than an NHS facility, the claim is brought against the private provider rather than an NHS trust. NHS Resolution is not involved: the private provider's own insurer or indemnity scheme handles the defence.
The same legal tests apply regardless of whether the treatment was NHS or private: duty of care, Bolam standard for breach, "but for" causation, and the same limitation periods under the Limitation Act 1980. What differs is the defendant, the funding arrangements on the defence side, and occasionally the contracts under which treatment was provided.
Your solicitor identifies the correct defendant as part of the initial assessment. In cases where NHS-funded treatment was delivered by a private provider under an NHS contract, the position can be more complex, and early legal advice is particularly important.
How is an NHS negligence claim funded?
The standard funding arrangement for NHS medical negligence claims is a CFA arrangement (Conditional Fee Agreement). You pay nothing upfront. If the claim is unsuccessful, you owe your solicitor nothing for their time. If it succeeds, a success fee of up to 25% of your past losses and general damages is deducted, as set by the CFA Order 2013. Future losses are fully protected.
After the event (ATE) insurance is arranged to cover disbursements, principally the cost of expert reports, if the claim fails. Qualified One-way Costs Shifting (QOCS) protects you from paying NHS Resolution's legal costs if the claim is unsuccessful, in most circumstances.
Legal aid remains available for a narrow category of NHS negligence claims: those involving severe neurological injury to an infant. If your claim falls into this category, your solicitor will advise whether legal aid is the appropriate funding route.
Start your claim
AAA Solicitors handles all categories of NHS medical negligence claim in England and Wales on a no win no fee basis. The initial assessment is free and commits you to nothing.
You have a records access right and can request them directly from your GP or the trust's subject access team at any point. Your solicitor will also obtain them on your behalf as part of the claim.
To find out whether you have a valid claim, contact us by form or telephone for a free initial discussion.