Medical negligence claims in Scotland

Published by Rooney Family Law Limited, solicitors, regulated by the Law Society of Scotland. Last reviewed 20th September 2026.

Why treatment going wrong is not the same as negligence

This is the hardest thing to hear, and it is the reason many people who have been badly let down still have no claim. Medicine carries risk. An operation can be performed perfectly and still leave you worse off. A diagnosis can be reasonable on the information available and still turn out to be wrong. A bad outcome, even a devastating one, does not by itself mean anybody was negligent.

The Scottish test comes from Hunter v Hanley 1955 SC 200, and it is demanding. Three things must be established together: that there is a usual and normal practice; that the practitioner departed from it; and that the course taken is one that no professional of ordinary skill would have taken if acting with ordinary care. It is not enough to find another doctor who would have done it differently. Support from a responsible body of professional opinion is important, but it is not necessarily conclusive: the professional practice relied on must withstand logical analysis.

Consent is treated differently, and here Scotland led the way. In Montgomery v Lanarkshire Health Board [2015] UKSC 11, a Scottish case decided by the Supreme Court, it was held that a patient must be told of any material risk to which a reasonable person in their position would attach significance, or to which the doctor knew, or ought reasonably to have known, that this particular patient would attach significance, and of reasonable alternatives. If you were not warned of a risk that then materialised, and you would have chosen differently had you known, that is a distinct route to a claim.

The second hurdle: causation

Even where the care fell below standard, you must show that the failure caused the harm. This defeats many otherwise strong-looking cases. If a cancer was diagnosed late but the outcome would have been the same had it been caught on time, there is no claim for the outcome, however poor the care was. Causation in clinical cases usually needs its own expert evidence, separate from the evidence on standard of care.

What it costs to find out

Answering those two questions means obtaining your full medical records and instructing an independent expert in the relevant specialty, often more than one. That investigation is expensive and has to be paid for before anyone knows whether a claim exists, which is why specialist firms screen these enquiries carefully and why a firm that takes a clinical case on is making a real commitment. Claims against the NHS in Scotland are defended by the Central Legal Office, which is experienced and well resourced. These are not quick cases.

The time limit

Three years, as with any injury claim, but the date of knowledge rule matters more here than anywhere else, because patients often do not know for years that something went wrong. Time runs from when you knew, or could reasonably have known, that the injury was serious, that it was caused by an act or omission, and who was responsible. Children have until their nineteenth birthday. See the three-year time limit.

What to do

These are the routes open to you. They are not strictly sequential, and you can take legal advice at the same time as complaining. One caution: starting a court action normally brings the NHS complaints process to a halt, so think about the order that suits you.

1. Ask for an explanation. Every NHS board in Scotland has a complaints procedure and you are entitled to a written explanation of what happened. Complain within six months of the incident, or within six months of realising you had something to complain about and in any event within twelve months, though those limits may be relaxed where there is good reason. It costs nothing, is often the fastest route to an answer, and produces documents a solicitor would need anyway. Many people who begin by wanting to sue actually want to know what went wrong and to be sure it will not happen to someone else; the complaints process addresses that, and litigation frequently does not.
2. Get free, independent help with it. The Patient Advice and Support Service, provided by Citizens Advice Scotland, is free and independent and will help you make a complaint and understand the response.
3. If you remain dissatisfied, the Scottish Public Services Ombudsman is the final stage for NHS complaints in Scotland.
4. Ask for your records. You are entitled to them.
5. Then speak to a specialist firm. The Law Society of Scotland's Find a Solicitor directory lets you search for firms accredited in medical negligence. Do that well before three years have passed, because a firm needs time to investigate.

Questions people ask

Sources for this page: Hunter v Hanley 1955 SC 200; Montgomery v Lanarkshire Health Board [2015] UKSC 11; Prescription and Limitation (Scotland) Act 1973, section 17; Damages (Scotland) Act 2011; Patient Rights (Scotland) Act 2011; Patient Advice and Support Service (Citizens Advice Scotland); Scottish Public Services Ombudsman; NHS Scotland Central Legal Office; Law Society of Scotland, Find a Solicitor.