NHS inertia is a problem

FEW areas of civil law are more difficult or emotionally draining to pursue than clinical negligence cases. Culpability is notoriously tricky to prove; gathering evidence can be massively time consuming and expensive; and the NHS in particular is often slow to engage.

Sue Grant, executive board member and head of Clinical Negligence at Digby Brown, gives one example of how such a case might unfold – a hypothetical incident where parents who believe an error was made during the delivery of their baby, resulting in a severe brain injury are considering legal action.

“In fact, only a small proportion of these cases, which we call cerebral palsy, are caused by events during labour and delivery,” Sue Grant of Digby Brown explains. “About 80 to 90 per cent are attributable to other causes, such as genetic problems or a virus.”

She describes investigating these cases with suitable experts as a formidable challenge. To begin with, lawyers will attempt to assess exactly what happened in the delivery room. Parents may have had the benefit of a Critical Incident Review following an adverse outcome or may have been provided with an explanation of events.

The clinical negligence specialists at Digby Brown will review all the information available and decide if a case is viable and if funding should be put in place to pursue it.
Should they agree to press on, reports will be commissioned from medical experts – in the case of a brain-damaged baby, this will involve formal opinions from many separate highly-qualified medical specialists.

“Basically, we are building the case at this stage,” Sue Grant explains. “It can take a couple of years for each expert to do their bit. You have to get them all joining up with each other.”
A case cannot be based on system failure – it has to prove that individuals were to blame. “We have to be able to show that the negligent party departed from normal practice – that what they did was something that no ordinarily competent professional of ordinary skill in that field would have done.”

This evidence is normally provided by their medical peers: as an example, a midwife would be asked to give evidence that another midwife involved in the case had not displayed the expected degree of competence.

The amount which can be claimed also depends on life expectancy. “Sadly, many brain damaged babies do not live for a normal lifespan,” says Sue Grant, “but if they did, then the claim could easily be worth several million.”

Another issue in Scotland is the inertia of health boards who often defend cases to the last ditch. “They simply do not try and resolve claims where liability should not be an issue. They treat all cases as if they are the same.

Because the health boards pursue this rigorous policy of refusing to admit liability, Grant adds, victims of clinical negligence tend to end up worse off than claimants for other types of personal injury.

“On one view, they are the gatekeepers, stopping people who simply feel they can get money off the NHS. But there are cases in which negligence is clear cut and victims deserve a more proactive approach to resolution.

“The boards should have a robust system in place to identify claims which need to be resolved and then to do so honestly and quickly.”

This article was published in The Scotsman on 26th March 2012 written by Andrew Collier

If you would like to find out more about how Digby Brown could help you with a Clinical Negligence case email: clinical.negligence@digbybrown.co.uk or click here to read more about the department.