What Evidence Do I Need to Sue a Hospital? A Clinical Negligence Evidence Guide

Last updated: 7 May 2026

Quick answer

To bring a clinical negligence claim against a hospital in England and Wales, you will need evidence across four pillars: that a duty of care existed, that it was breached, that the breach caused harm, and that the harm produced quantifiable loss. The backbone of that evidence is your full medical records, obtained free of charge under a subject access request, supported by independent expert reports on breach and causation, witness statements, and documentation of your financial and personal losses. Complaint findings, inquest material, and apologies can be useful context but rarely carry a case on their own. This guide is general information, not legal advice — for advice on your particular circumstances, speak to a solicitor who specialises in clinical negligence.

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Why the evidence question matters before anything else

Most people who feel they have been let down by a hospital start by writing a complaint or reading about other claimants' experiences online. That is a reasonable starting point, but a complaint and a claim are different journeys with different evidential thresholds. A complaint asks the Trust to reflect on its conduct. A claim asks a civil court to find, on the balance of probabilities, that the hospital fell below a competent standard and that the failure caused you injury, loss, or both.

The civil standard is exacting and the evidence required to meet it is specific. If you are at the stage of asking what you would actually need to put in front of a judge, you are already thinking about this in the right order. The legal landscape is unfamiliar to most people who haven't worked inside it — treating yourself as someone learning to read a new written language, rather than someone who ought to know already, is the most useful frame.

What follows sets out the evidence categories courts and defendants expect to see, how to request the underlying material, and the limits of each evidential thread. None of it is a substitute for advice on your specific case.

The four evidential pillars

A clinical negligence claim, whether against an NHS Trust or a private hospital, stands or falls on four elements. You will need evidence directed at each one.

• Duty of care. That a doctor, nurse, midwife, or institution owed you a duty in the relevant clinical encounter. In hospital treatment this is almost always uncontroversial — the Trust accepts that its clinicians owed a duty of care to the patient in front of them.
• Breach of duty. That the treatment or omission fell below the standard of a reasonably competent practitioner in the same speciality. The legal test was set out in Bolam v Friern Hospital Management Committee [1957] and refined in Bolitho v City and Hackney Health Authority [1998] — a body of competent professional opinion supporting the conduct will defeat a breach allegation, unless that opinion cannot withstand logical analysis. For consent cases, Montgomery v Lanarkshire Health Board [2015] requires that material risks were properly disclosed to the patient.
• Causation. That the breach caused, or materially contributed to, the injury complained of. This is often the hardest pillar in clinical claims because patients are by definition already unwell when treated.
• Loss and quantum. That the injury produced measurable loss — pain and suffering, lost earnings, care costs, future treatment, equipment, accommodation adaptation, and so on.

Each pillar requires its own evidence stream. Strong evidence on breach without causation evidence is a case that will not survive a defence response. Strong evidence on causation without loss is a case worth nominal damages. The pillars work together.

Medical records — the foundation of every clinical negligence case

Your medical records are the single most important body of evidence you will gather. They are contemporaneous, written by the clinicians involved at the time, and they are how every expert you instruct will form their opinion. Before you do anything else, get your records.

Records are held in different places by different bodies, and you will usually need to request from each:

• Your GP records. Held by your general practice. Request under Article 15 of the UK GDPR — a subject access request, often abbreviated to SAR. Records must be provided free of charge within one month. The previous £10 fee under the Data Protection Act 1998 was abolished when GDPR took effect on 25 May 2018; if a practice asks for payment, they are wrong.
• NHS Trust records. Held by the Trust where you were treated. Same Article 15 SAR route, same one-month statutory deadline, no fee. Address it to the Trust's Information Governance or Subject Access team — most Trusts publish a request form on their website.
• Private hospital records. Where treatment was paid for privately, records are held by the private hospital and often, separately, by the consultant in their personal practice. Both should be requested.
• Records held by community providers. Health visitors, district nurses, mental health teams, and ambulance service records are commonly held by separate organisations — a community NHS Trust, an ambulance Trust, a CAMHS provider. Each needs a separate SAR.

Within the records themselves, the documents that experts most often rely on include:

• Admission and discharge summaries
• Operation and theatre notes
• Anaesthetic charts
• Observation charts (vital signs, fluid balance, early warning scores such as NEWS2)
• Drug charts and medicines administration records
• Pathology reports and laboratory results
• Imaging reports — and, importantly, the imaging itself (a CT or MRI scan on disc, not just the radiologist's written report)
• Nursing notes
• Incident reports the Trust has chosen to disclose
• Correspondence between clinicians

When you receive records, check the pagination is continuous and that nothing referenced in one document (an MRI report, a histopathology slide, a referral letter) is missing. If the records appear incomplete, write back and ask specifically for the missing material. Trusts have been known to omit incident investigation documents, datix entries, and root cause analyses unless asked.

Records for a deceased patient

Where the claim arises from a death, the Article 15 GDPR right does not apply — data protection rights end at death. The governing statute is the Access to Health Records Act 1990. Records can be requested by the deceased's personal representative (executor or administrator) or by any person who may have a claim arising out of the patient's death. The Act does not impose a fee for routine access, though some providers charge a reasonable copying fee for very large records.

This route is narrower than the GDPR right, and providers will sometimes ask for sight of the grant of probate or letters of administration before releasing the file. Have those documents to hand.

Witness evidence

Your own witness statement is core evidence — what symptoms you experienced, when you reported them, what was said to you in consultations, what you saw and heard, and how the injury has affected you since. It needs to be detailed, chronological, and supported wherever possible by reference to dates that can be cross-checked against the records.

Family members who attended consultations or who saw you in the immediate aftermath can also give witness evidence. A spouse who recalls a consultant explaining the risks of surgery, or who watched a parent deteriorate over a weekend on a ward, can fill gaps the records do not capture. Their statements should be theirs, in their words, not a summary you have written for them.

Some categories of witness are harder to secure at this stage:

• Treating GPs can sometimes give a short factual statement about what they observed and referred. They are not, at this point, giving expert opinion — that comes later from an independent expert.
• Nurses and junior hospital staff are very rarely available to give witness statements before proceedings are issued. Their evidence usually emerges through the disclosure process once a claim is formally underway.
• Other patients on the ward are occasionally relevant where they witnessed what happened to you; their willingness to be involved varies.

Expert evidence — the heart of a clinical negligence claim

You cannot bring a clinical negligence claim without independent expert evidence. The Pre-Action Protocol for the Resolution of Clinical Disputes assumes both sides will obtain it, and CPR Part 35 governs how experts give evidence to the court.

You will typically need at least two experts:

• A breach of duty expert in the same speciality and at equivalent seniority to the clinician whose conduct is in issue. If the criticism is of a consultant orthopaedic surgeon, the expert should be a consultant orthopaedic surgeon — not a registrar, not a GP with an interest. Their report addresses whether the treatment fell below the standard of a reasonably competent practitioner in that speciality, applying Bolam and Bolitho.
• A causation expert, who is often in a different speciality entirely. A surgical breach may have caused a neurological injury, in which case a neurologist or neurosurgeon will speak to causation. In a delayed cancer diagnosis case, an oncologist will explain what difference earlier diagnosis would have made to staging and prognosis.

In some cases the same expert can address both breach and causation; in many they cannot. A condition and prognosis report from a treating or independent specialist will also feed into quantum.

Expert reports are not cheap and the timeframe for obtaining them runs in months, not weeks. A solicitor specialising in clinical negligence will have established relationships with experts; a litigant in person can instruct experts directly but should expect to pay privately and to negotiate scope and fees in writing before instruction.

Quantum evidence — proving the loss

A claim that succeeds on breach and causation but fails to evidence loss will recover little. Quantum evidence runs in parallel with everything else and is often where claimants underestimate the volume of paperwork required.

The categories most often seen in clinical negligence claims:

• Past loss of earnings — payslips before and after the index event, P60s, employer letters confirming sick leave and reduced hours, self-assessment tax returns for the self-employed
• Future loss of earnings — supported by an employment expert in significant cases
• Care and assistance — a care diary kept contemporaneously by the family member providing help, supported by a care expert's report on hours and rates
• Medical expenses — receipts for private physiotherapy, prescription charges, prosthetics, mobility aids, psychological therapy
• Travel — to hospital appointments, with mileage logs or public transport receipts
• Aids and equipment — quotations and invoices, with replacement-cycle costings for future need
• Accommodation — where the injury requires adapted housing, valuations and adaptation specifications

These are pulled together into a Schedule of Loss, served alongside the Particulars of Claim once proceedings are issued. Building the schedule is a forensic exercise — every figure should be traceable back to a document.

Documents outside the clinical record

Several streams of paperwork sit outside the medical records but can be probative.

• Complaint correspondence — your letter of complaint to the Trust under the NHS Complaints Procedure (Local Resolution Stage 1), the Trust's response, any meeting notes
• Parliamentary and Health Service Ombudsman findings — where you escalated the complaint, the Ombudsman's report. Findings are admissible but are not determinative of the civil claim, and the standard of investigation differs
• Inquest documentation — where there has been a death, the Coroner's Pre-Inquest Review documents, witness statements, the Record of Inquest, and any Prevention of Future Deaths report. Inquest material is admissible in civil proceedings, but findings of fact at an inquest do not bind the civil court — the inquest applies a different process and, on some issues, a different standard
• Internal Trust investigations — Serious Incident reports, root cause analyses, datix entries, and any letter of apology issued under the duty of candour. These are sometimes the most candid documents in the file

Treat these as supporting context. They sit alongside the records and the experts; they do not replace them.

What is not enough on its own

It is worth being direct about evidence that is sometimes mistaken for case-winning material:

• A complaint upheld by the Trust. The Trust accepting that something went wrong is helpful, but the Trust's threshold for upholding a complaint is not the Bolam/Bolitho standard. A claim still requires expert evidence that the conduct fell below a reasonably competent standard.
• An apology under the duty of candour. Apologies are required by statute and regulatory rules and do not in themselves amount to admissions of legal liability. They are useful corroborative material, no more.
• Press coverage. A newspaper article about a hospital scandal cannot prove your case. It may direct you to others affected, but each claim is decided on its own facts.
• Hospital staff comments made informally. A nurse saying "I told them this would happen" in a corridor is not evidence the court can act on unless it is reduced to a witness statement.
• PHSO findings alone. The Ombudsman applies its own framework and is not a court. Findings can be deployed in correspondence but cannot stand in for expert evidence.

None of this means complaint material is worthless. It means the civil claim has to be built on the records, the experts, the witnesses, and the quantum evidence — with everything else as supporting context.

Who you are actually claiming against — and who pays

The defendant on a clinical negligence claim is usually not the individual clinician.

• For NHS hospital treatment in England, the defendant is the relevant NHS Trust or Foundation Trust. Indemnity is provided by NHS Resolution under the Clinical Negligence Scheme for Trusts (CNST). NHS Resolution will handle the claim, instruct defendant solicitors, and pay any damages and costs. Letters of claim are sent to the Trust and copied to NHS Resolution.
• For NHS GP treatment, indemnity is provided through the Clinical Negligence Scheme for General Practice (CNSGP), also administered by NHS Resolution.
• For private hospital treatment, the position is more fragmented. The hospital itself may be sued for institutional failings (nursing care, equipment, theatre processes), and the consultant — who is usually self-employed even when working in NHS premises privately — will hold their own indemnity through the MDU, MPS, or MDDUS, or through a commercial medical indemnifier. Two letters of claim, to two different organisations, may be necessary.

Knowing who actually receives the letter of claim, and who pays if the claim succeeds, shapes how the correspondence is addressed and how settlement is negotiated.

Limitation — the deadline that catches people out

Section 11 of the Limitation Act 1980 sets a three-year limitation period for personal injury claims, including clinical negligence. The period runs from the later of the date of the injury or the date of knowledge as defined in section 14 — broadly, the date you first knew, or could reasonably have known, that the injury was significant and was attributable to the act or omission you now complain of.

Date of knowledge is fact-sensitive and frequently litigated. A claim involving a delayed cancer diagnosis may have a date of knowledge running from the date the correct diagnosis was finally made, not the date of the original missed appointment.

Special rules apply to children (the three years runs from the eighteenth birthday), to those lacking mental capacity (limitation may not run at all while incapacity persists), and to fatal accident claims (a fresh three years from the date of death or the personal representative's date of knowledge, whichever is later). Section 33 gives the court a discretion to disapply limitation in personal injury cases, but it is exercised cautiously.

If you are anywhere near three years from the index event or the date you first connected the injury to the treatment, prioritise getting legal advice over getting more records.

How evidence becomes a court bundle

If a claim does not settle and proceeds towards trial, the evidence you have gathered has to be organised into a bundle that complies with the relevant court rules and any directions the judge has given. For clinical negligence, that usually means:

• A statements of case section (claim form, particulars of claim, defence, reply)
• A case management section (orders and directions)
• A witness statements section, in chronological order
• A medical records section, paginated continuously, indexed by provider and date — this is often the largest section by some margin
• An expert reports section, with each expert's reports kept together and joint statements at the end
• A quantum section containing the Schedule of Loss, Counter-Schedule, and the underlying financial documents
• A liability documents section for any non-record material (complaints, inquest documents, internal investigations)

Pagination has to be continuous, the index has to be accurate, and the bundle has to be served on every party and on the court within the timeframes the directions specify. For litigants in person, this is often the point at which the volume of paper becomes hard to manage by hand.

Next steps

If you are at the start of this journey, a sensible order of work looks something like this:

• Send subject access requests for your full records to your GP, every NHS Trust involved, and any private hospital — in writing, citing Article 15 of the UK GDPR, with no fee
• Where the patient has died, send an Access to Health Records Act 1990 request with proof of your status as personal representative or as a person with a claim arising from the death
• Start a contemporaneous diary of symptoms, care needs, and financial losses
• Keep every receipt, payslip, prescription charge, and travel record from the date of the index event
• Note the date you first connected the injury to the treatment — this is your section 14 date of knowledge and starts the limitation clock
• Before instructing an expert privately, take legal advice from a solicitor who specialises in clinical negligence — many offer free initial consultations and most clinical negligence claims are run on conditional fee arrangements
• Follow the Pre-Action Protocol for the Resolution of Clinical Disputes once you are ready to put a letter of claim together

This guide is general information, not legal advice; for advice on your case, speak to a solicitor.

BundleCreator can help you organise the documents you'll need into a bundle aligned with the relevant practice direction when you reach the proceedings stage. We offer a 14-day trial, and clinical negligence templates sit ready in your library.