Quick answer
In Scotland, to succeed in a medical negligence claim you must prove: (1) duty of care; (2) breach of that duty (that the care fell below the standard of a reasonably competent practitioner); (3) causation (that the breach caused your harm); and (4) that the harm was avoidable. Expert medical evidence is essential.
The Legal Test for Medical Negligence in Scotland
Medical negligence — or clinical negligence — claims in Scotland are brought under the law of delict. The test applied by Scottish courts is the same as in English law in this area: the Hunter v Hanley (1955) test, which requires that the pursuer demonstrate that the healthcare professional's conduct fell below the standard of the ordinary skilled person exercising that particular art.
Duty of Care
A doctor, nurse, GP, dentist, surgeon or other healthcare professional owes a duty of care to their patients. This duty arises when a professional-patient relationship exists. It extends to NHS healthcare providers, private hospitals, clinics, GPs and other practitioners.
Breach of Duty
A breach of duty occurs when the healthcare professional's conduct falls below the standard of a reasonably competent practitioner in that specialty. In Scotland, the test established in Hunter v Hanley requires that you prove the practitioner failed to exercise the standard of the ordinary skilled person exercising that particular art.
Critically, a breach of duty is not simply an adverse outcome or a mistake. Not all medical errors amount to negligence. The question is whether a responsible body of practitioners in that specialty would have acted in the same way. Expert medical evidence from a specialist in the relevant field is required to establish breach.
Causation
Even if breach of duty is established, you must also prove that the breach caused or materially contributed to your harm. This can be complex in medical cases, because patients often have pre-existing conditions or underlying health problems that might have caused the same outcome regardless of the alleged negligence.
The standard test for causation in Scotland — as in England — is the "but for" test: but for the defendant's breach, would the harm have occurred? In some cases involving multiple contributing causes, the material contribution test may apply.
Avoidable Harm
It is important to understand that not every bad medical outcome amounts to negligence. Medical treatment involves risk, and some complications are known risks of procedures or treatment that occur even when the care provided is entirely appropriate. To succeed in a claim, the harm you suffered must be one that would not have occurred had the duty of care not been breached.
The Role of Expert Medical Evidence
Expert medical evidence is essential in almost every clinical negligence case. Your solicitor will instruct an independent expert in the relevant specialty to review your medical records and provide an opinion on:
- Whether the care you received met the required standard
- If not, how it fell below the required standard (breach)
- Whether the breach caused or materially contributed to your harm (causation)
- The extent of your injury and its likely prognosis (quantum)
Time Limits for Medical Negligence Claims in Scotland
The three-year limitation period applies. It runs from the date of the negligent treatment or — more commonly — from the date of knowledge: when you knew or ought reasonably to have known that your harm was caused by negligent medical care. This is particularly important because patients often do not immediately understand that a complication was caused by negligence.