How to Prepare a Medical Negligence Claim Yourself: A Step-by-Step Guide

Who this guide is for

This is written for litigants in person and McKenzie Friends in England and Wales who are weighing up a clinical negligence claim. Some readers will already have had an initial meeting with a solicitor and been told the case is borderline or uneconomic for a firm to take on a conditional fee agreement. Others will be entirely self-funded and trying to understand whether the claim is viable before spending any money.

Clinical negligence is one of the most technically demanding areas of civil litigation. The substantive law is layered, the evidence is medical and statistical, and the costs risks for an unsuccessful claimant are real. Treat what follows as a map of the landscape rather than a step-by-step instruction manual you can follow blindly. Law, in this field, behaves like a new written language — the words look familiar but the meanings are precise and often counter-intuitive.

If you are reading this in the immediate aftermath of a serious harm or bereavement, please be gentle with yourself about pacing. You do not have to make any decision today.

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Should you run the claim yourself?

The honest answer for the great majority of clinical negligence claims is: probably not, and certainly not without independent medical expert evidence. The reasons are practical rather than discouraging.

Many specialist clinical negligence firms work on a conditional fee agreement (often called "no win, no fee"). If they take your case, they typically fund the disbursements — expert fees, court fees, after-the-event insurance — and you pay nothing if you lose. They take a success fee, capped at 25% of past losses and PSLA under the Conditional Fee Agreements Order 2013, from any damages you recover. Legal aid remains available for clinical negligence causing a neurological injury that leaves a child severely disabled, where the negligence occurred in the womb or during birth, or within 8 weeks after birth (for a baby born before the 37th week of pregnancy, 8 weeks from what would have been the first day of that week) (LASPO 2012 Sch 1 Pt 1 para 23), subject to means and merits. Action against Medical Accidents (AvMA) maintains a panel of accredited clinical negligence specialists and offers a free initial inquiry service.

You might still consider self-representation if:

• A solicitor has assessed your case and declined it on commercial grounds, but you have strong reasons to continue
• The claim is modest in value and the issues are narrow (for example, a single retained surgical item with clear records)
• You have already obtained supportive expert evidence privately
• You are using the process to obtain answers and an apology rather than substantial damages

Even in those situations, a McKenzie Friend or a direct-access barrister for discrete pieces of work — drafting the Letter of Claim, advising on Part 36 offers, settling Particulars — is often money well spent.

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The three legal hurdles

Every clinical negligence claim has to clear the same three hurdles. Failing any one of them ends the claim.

Duty of care

This is rarely contested. Once a clinician accepts you as a patient, a duty of care arises automatically. The defendant in NHS treatment is normally the relevant NHS Trust, represented by NHS Resolution (in England; in Wales, the health board or trust). For private treatment, the defendant is the clinician personally (and possibly the private hospital), defended through their professional indemnity insurer such as the Medical Defence Union or the Medical Protection Society. The route the claim takes — and the realistic appetite for settlement — differs noticeably between the two.

Breach of duty

The classic test comes from Bolam v Friern Hospital Management Committee [1957]: a clinician is not negligent if their conduct accords with a practice accepted as proper by a responsible body of medical opinion. Bolitho v City and Hackney Health Authority [1998] added an important qualification — the body of opinion must withstand logical analysis. A practice that cannot be defended on rational grounds is not a defence simply because some doctors follow it.

Consent cases follow a different test. Montgomery v Lanarkshire Health Board [2015] UKSC 11 requires clinicians to disclose any material risk — one to which a reasonable person in the patient's position would be likely to attach significance, or to which the doctor knows or should know this patient would (Montgomery, para 87) — and any reasonable alternative or variant treatments; McCulloch v Forth Valley Health Board [2023] UKSC 26 governs which alternative treatments count as reasonable to discuss (the professional-practice / Bolam test). If you were not warned of a material risk that materialised, the analysis turns on what you would have done with that information.

Causation

Causation is where most clinical negligence claims live or die. The basic test is "but for" — but for the breach, would the injury have occurred? In medicine, the answer is rarely binary. The patient was already unwell. There were multiple contributing factors. The negligence may have made an existing condition worse, advanced its progression, or removed a chance of a better outcome.

The courts have developed doctrines around material contribution to harm (Bailey v Ministry of Defence [2008] EWCA Civ 883), but Gregg v Scott [2005] UKHL 2 held that the loss of a less-than-even chance of a better outcome is not recoverable in clinical negligence. Expect causation, not breach, to be the battleground.

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Limitation: the clock you cannot ignore

Section 11 of the Limitation Act 1980 gives you three years to issue proceedings in a personal injury claim, including clinical negligence. Time runs from the later of two dates:

• The date the cause of action accrued (in negligence, when the injury was suffered — often, but not always, the date of the negligent act or omission)
• Your "date of knowledge" under section 14 — broadly, the date you first knew (or should reasonably have known) that the injury was significant and was attributable to the act or omission complained of

Date of knowledge is fact-sensitive. It is not the date you obtained legal advice; it is the date a reasonable person in your shoes would have appreciated they might have a claim worth investigating. For children, the three years run from their eighteenth birthday. If you lacked capacity to conduct proceedings when the cause of action accrued, time does not start until capacity is regained (Limitation Act 1980 ss.28(1), 38(2)); losing capacity later does not stop the clock.

Section 33 gives the court a discretion to disapply the limitation period where it is equitable to do so. That discretion exists, but it is exercised carefully, and the burden is on the claimant to justify it. Section 33 is no substitute for issuing in time. If you are anywhere near three years from the event or from realising something went wrong, treat limitation as the single most urgent issue in your case.

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Step one: get the records

You cannot evaluate a clinical negligence claim without the medical records. Under Article 15 of the UK GDPR you have a right of access to your personal data, including health records. The mechanism is a Subject Access Request (SAR), and there is no fee in ordinary circumstances; a reasonable fee may be charged for manifestly unfounded or excessive requests. The controller has one calendar month to respond, extendable by two further months for complex requests.

Send a SAR to:

• Your GP practice — for the full GP record, paper and electronic
• The relevant NHS Trust — for hospital records, including imaging, pathology, nursing notes, drug charts, theatre records, and correspondence
• Any private clinician or hospital involved
• The ambulance service if pre-hospital care is in issue

Ask specifically for the complete record, not a summary. When records arrive, paginate them chronologically and build an index. You will need this anyway when you reach the proceedings stage, and an organised, paginated, chronological set of records is what every expert and every defendant will expect to see.

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Step two: the Pre-Action Protocol

The Pre-Action Protocol for the Resolution of Clinical Disputes governs the period before proceedings are issued. It is designed to encourage early exchange of information and, where possible, settlement without litigation. Failure to follow it without good reason can be penalised in costs.

The shape of the Protocol is:

1. Records request — on the Protocol's Annex B form (para 3.3) or by Subject Access Request; the Protocol expects records within 40 days (para 3.4.1).
2. Optional Letter of Notification — sent after you have received and analysed the records and, if appropriate, an initial supportive expert opinion (para 3.11.1). The defendant should acknowledge it within 14 days (para 3.12.1(a)); the substantive response on liability follows the Letter of Claim.
3. Letter of Claim — the formal letter setting out the allegations, the breach, the causation, the injuries, and an outline of financial loss. This must be detailed enough that the defendant can investigate properly.
4. Letter of Response — the defendant should respond within four months of the Letter of Claim (para 3.24), admitting or denying breach and causation with reasons.
5. Negotiation or proceedings — if the response denies liability and the claim has merit, the next step is generally to issue proceedings.

A Letter of Claim is not a pleading (para 3.19), but it must give enough information for the defendant to focus its investigations and put an initial value on the claim (para 3.18). Drafting it without expert evidence already in hand is a poor use of everybody's time.

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Step three: expert evidence

This is the part of the case you cannot do yourself. Be honest with yourself about it.

Clinical negligence requires, at minimum, two independent experts:

• A breach expert in the same speciality and at the same level as the defendant clinician (consultant obstetrician, consultant orthopaedic surgeon, GP, etc), giving evidence on whether the care fell below the Bolam–Bolitho standard
• A causation expert, often in a different speciality, giving evidence on what would have happened with non-negligent care, and what injury the breach actually caused

In some cases — birth injury, complex oncology, missed cardiac diagnoses — you will need three or four experts. CPR Part 35 governs expert evidence in proceedings: the duty is to the court, not to the instructing party, and the form and content of reports is prescribed.

If you cannot fund expert evidence, you have, in practical terms, no clinical negligence claim. This is a common reason claims are not pursued — not that the care was acceptable, but that the cost of proving it was not is disproportionate to the likely damages.

This is also the realistic point at which most self-representing claimants stop and instruct a firm on a conditional fee agreement. There is no shame in that conclusion. It reflects the structure of the field.

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Step four: working out what the claim is worth

Damages in a clinical negligence claim fall into recognisable heads. You are not trying to put a price on what happened; you are trying to put the claimant, so far as money can, into the position they would have been in but for the negligence.

General damages — pain, suffering and loss of amenity (PSLA). Assessed by reference to the Judicial College Guidelines and reported case law. The Guidelines give brackets by injury type; the precise figure depends on severity, age, prognosis, and the impact on the claimant's life.

Past financial losses. Loss of earnings (net of tax), care and assistance (including gratuitous care provided by family, valued at a discounted commercial rate), medical and treatment expenses, travel, aids and equipment.

Future losses. Future loss of earnings calculated using the Ogden Tables and the prevailing discount rate, future care, future medical treatment, future aids and equipment on appropriate replacement cycles.

Accommodation. Where the injury requires adapted or larger accommodation, the approach since Swift v Carpenter [2020] is to award the additional capital cost less the present value of the reversionary interest at trial. The mechanics are complex and require accommodation-expert evidence.

Periodical Payment Orders. For catastrophic claims with long-term care needs, damages may be ordered as a lump sum plus periodical payments. Periodical payments for future pecuniary loss (Damages Act 1996 s.2(1)) are linked to the retail prices index by default (s.2(8)), but the order may modify this (s.2(9)); care costs are commonly linked to an ASHE earnings measure for care workers (Tameside and Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5).

I am deliberately not giving figures or ranges for any specific injury. Awards turn on the individual facts and shift with case law. Anyone who tells you what your claim is worth before reading the records, the expert evidence, and the witness evidence is guessing.

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Step five: the realities of self-representation

Even where the substantive claim is viable, the procedural realities for a litigant in person in clinical negligence are demanding.

Court fees. For money claims over £200,000 the issue fee is £10,000 (EX50, updated 13 July 2026). Help with Fees depends on your savings, income and benefits, not the value of your claim; the savings allowance rises with the size of the fee.

Costs risk. Personal injury claims, including clinical negligence, are subject to Qualified One-Way Costs Shifting (QOCS) under CPR 44.13–44.17. In broad terms, costs ordered against you can usually be enforced only up to the damages, interest and costs awarded to you (CPR 44.14); full enforcement is possible if the claim is struck out (CPR 44.15) or found fundamentally dishonest (CPR 44.16). Failing to beat a Part 36 offer can mean costs are deducted from your damages.

Part 36 offers. A defendant Part 36 offer is a strategic instrument with real teeth. If you reject one and fail to beat it at trial, the costs consequences from the expiry of the relevant period can be severe — even with QOCS in place, costs can be set off against your damages. Understanding the timing rules and the cost consequences of acceptance, rejection and late acceptance is genuinely difficult.

After-the-event (ATE) insurance. ATE policies cover the risk of paying disbursements and, in some cases, adverse costs. Solicitors arrange these routinely; arranging one yourself as a litigant in person is harder but not impossible.

Court bundles and procedural compliance. When you reach trial, the bundle has to be properly indexed, paginated, organised by category, and filed in the form the court directs. This is the part of proceedings that is most amenable to self-help if you have the right tools — but the substantive advocacy is a separate matter.

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When to stop and instruct a solicitor

Be willing to make this decision early. The signals that self-representation is no longer realistic are:

• You need expert evidence on breach and causation and cannot fund it privately
• The defendant has denied liability in a Letter of Response and the case is heading for proceedings
• The claim involves a child, a deceased patient, or a protected party (these claims have additional procedural requirements, including approval of any settlement under CPR Part 21)
• Clinical negligence claims must be allocated to the multi-track whatever their value, unless the claim is of intermediate-track value, the defendant admitted liability in full in its Letter of Response, and no limitation defence has been raised (CPR 26.9(10)(b))
• You have received a Part 36 offer and need to evaluate it on costs as well as substance
• The clinical issues are complex enough that even drafting the Letter of Claim accurately is beyond what you can do without medical advice

A direct-access barrister can handle some of these tasks on a piece-of-work basis. AvMA can refer you to a specialist firm. The Bar Council and the Law Society both maintain searchable directories.

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A note on inquests, complaints, and apologies

If a relative has died and there is to be an inquest, the inquest is not a clinical negligence claim — but the evidence and the findings can be powerfully relevant to one. Engage with the inquest process carefully. PFD reports (Prevention of Future Deaths reports: Coroners and Justice Act 2009 Sch 5 para 7; Coroners (Investigations) Regulations 2013 reg 28) carry weight.

The NHS complaints procedure, Patient Advice and Liaison Services (PALS), and the Parliamentary and Health Service Ombudsman are separate routes that can secure an apology, an explanation, and changes in practice without the cost and risk of litigation. For some readers — particularly those whose primary motive is understanding what went wrong — these routes may be more useful than a damages claim. The Ombudsman will not normally investigate where you have or had a remedy in the courts, unless it is not reasonable to expect you to use it (Health Service Commissioners Act 1993 s.4(1)); NHS complaints should normally be made within 12 months (SI 2009/309 reg 12).

The Compensation Act 2006 confirmed that an apology is not in itself an admission of liability. Many Trusts will now apologise readily under the duty of candour. That apology is meaningful in its own right.

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Next steps

If you are considering a clinical negligence claim, the realistic next steps are these:

• Diary the limitation date today. Three years from when the cause of action accrued (usually the injury) or your date of knowledge, whichever is later.
• Send Subject Access Requests to every clinician and Trust involved. Paginate the records chronologically as they arrive.
• Speak to AvMA's free inquiry line and to two or three accredited clinical negligence solicitors. Many offer a free initial assessment.
• If a solicitor offers a conditional fee agreement, read the terms carefully — the success fee, the ATE premium arrangement, and the position on disbursements if you discontinue.
• If you are proceeding without a solicitor, begin drafting a chronology and a list of allegations, but do not send a Letter of Claim until you have at least an initial breach-and-causation expert view.
• Keep a contemporaneous note of how the injury affects daily life, work, and relationships. These notes feed directly into general damages and care evidence.

This guide is general information about the law of England and Wales as at 27 September 2026. It is not legal advice on your case. Clinical negligence is a specialist field and the realistic route for almost every claimant is to take advice from a specialist solicitor before issuing any proceedings.

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