Clinical negligence - what does the future hold?

Doctor looking at notes

Let us not forget that we have one of the best free healthcare systems in the world.  The NHS will deal with one million people every 36 hours.  It is therefore not surprising if mistakes happen or care is less than perfect at times. 

No one would want to encourage people to "have a go" at obtaining compensation whenever things go wrong.   But in our experience at Digby Brown many who contact us have good reason for seeking redress – their lives have been changed unexpectedly, they need treatment, help and support which they would not otherwise have needed and in many cases, they suffer financially.  Psychologically, an injury caused while receiving health care can be devastating. The fact you remain dependent on that same health care system afterwards makes things even more challenging for those who’ve been injured.

For those who seek redress they will need patience and deep pockets in order to go forward with a clinical negligence claim.  They might be lucky enough to qualify for Legal Aid but few do on financial grounds.   What about the baby damaged through neglect at birth where one or both of his parents is working?  Little chance they will qualify financially for Legal Aid.   Little chance either that there will be many solicitors willing and able to meet the huge investigation costs of experts before any claim is certain.  We are fortunate that at Digby Brown we can, in some cases, offer to do this.  But we can't fund them all.  

So is there a new dawn on the horizon? Well, not really but possibly a few chinks of light.  

It is hoped that early in the New Year we will have a new procedure in the Court of Session introducing a case management system for clinical negligence and complex high value cases for the first time.   The benefits for clients, the tax payer and the judicial system should be considerable. It is anticipated that issues will become focused at a much earlier point, non-contentious evidence will be agreed, witness lists will be paired down, there will be shorter court diets and much earlier resolution of cases. 

Sheriff Principal Taylor's report is eagerly anticipated and one aspect he has under consideration is Qualified One Way Cost Shifting.  This will be in force in England as of 1 April 2013.  What this means is that, subject to certain important qualifications, an unsuccessful pursuer will not be liable for a defenders expenses. If this was to be introduced in Scotland, access to justice for victims of clinical negligence would be very much improved.  Currently the possible exposure to the costs of the Health Board in unsuccessful cases and the lack of funding to meet that risk are a significant deterrent. 

There are Pre-Action Protocols for professional negligence and personal injury cases but none for clinical disputes. Discussions on a No Fault Scheme have brought this into focus and it looks likely that there will now be some progress with this. If a Protocol is to work it will, however, require a commitment from Health Boards to change their culture and to put in place the personnel and resources needed to make this work. 

There is no easy solution to clinical negligence claims. Legal practitioners in the field have no hesitation in saying that a No Fault Scheme is not the answer.  

Let’s hope however that the focus that this area of law will receive in the next few months will be an opportunity for all of us to focus on what can be achieved.