Change to Medical Negligence Scottish Law

It is clear that medical negligence may always play apart within medicine as many claim that health care workers are human and it is human nature to make mistakes, however the important questions is, is there ever room for mistakes when it comes to people’s health. The question will be clearly answered with a very big ‘no’ as even the littlest of medical errors can cause a disastrous domino effect on not only a person’s life but also those lives of close family and friends. Medical negligence is the act or omission from a health care worker that a health services that has been provided was below the expected standard set and as a direct result of such negligence the patient has been further harmed either mentally or physically. A health care worker is classed as a person who is responsible health and care wise for a patient and that can cover any one of the health care professionals, from a carer to a top class consultant. In reality medical negligence can take place in a variety of environments not just at hospitasl or GP surgeries, it can take place where ever a person classed as working within the health industry as a duty of care to a patient resides. Medical negligence can even take place in a person own home if they are medically being cared for there.

Medical NegligenceMedical negligence should always be brought to the surface so that organisations are aware of any poor standard of care that is being offered as it may not always be obvious to others that there are failings within the health industry. Negligence within medicine can be highly detrimental to a person’s health and to their future so it must never go unrecognised as it may continue to happen to others and such behaviour should not be allowed to continue. If you believe that you have been a victim of medical negligence and your health has been affected as a further consequence then you may have valid medical negligence claims and be able to purse a case for medical negligence.

Need for Change within Medical Negligence Law

Before now it was not law that those who were affected by medical negligence should be told of such negligence which in turn allowed for unacceptable behaviour to be covered up. If a negligent act was committed within the health industry it was probably taken for granted that health care workers are under a professional duty to work ‘honestly and transparently’ but as breaches were already being made to the standard of service a small minority were making providing poor standards of care it could no longer be taken as truth that such breach in duties were always being brought to the surface. In the UK there was a massive investigation after 1200 patients at two Mid-Staffordshire hospitals died under questionable circumstances but where never brought to light for a long period of time. It is absolutely crucial that a proposal for a change in the law concerning acts of medical negligence being omitted from the initial stages not only so that those committing such negligence will be deterred greatly and provide a much better service of care but so that cover-ups are no longer permitted to happen.

The Change in Medical Negligence Law

Health Secretary Alex Neil will soon announce changes to the law concerning medical negligence as part of UK wide strategy to completely put an end to medical negligence being undisclosed when rightly health care professionals have a duty to always be open and honest about misgivings. The new law to be implemented is known as the ‘statutory duty of candour’ which means hospitals will be under obligation to disclose any negligence committed by any member of staff and disclosed to the patient. The change in law will not only bring about transparency in the failings of organisations and their staffs but will also hugely improve standards and services offered by the health care industry and the Scottish Government believes it will allow staff to speak out more freely. Robert Francis QC who led the investigation on to the Mid-Staffordshire hospitals recommended that any health care worker who did not disclose any negligence should be prosecuted. It will not bring any new sanctions for hospitals and health care providers who provide a poor standard of service as the Scottish Government believes that there are already sufficient sanctions already in place under the existing rules. The statutory duty of candour is not only an ethical duty but a statutory duty set by law.


Is Medical Negligence on the Rise?

It is clear to see that compared with England Scotland do not have anywhere near the same amount of medical negligence cases per year. During 2010 and 2012 there was an average of 395 claims in Scotland according to the Herald Scotland, compared to a massive 13,500 in England during 2011 and 2012. Obviously there is population differences with England exceeding a lot more than Scotland but the huge difference within medical negligence claims is astonishing. One of the main reasons for such fewer claims in Scotland could be down to the medical negligence claim process and the fact that the funding process was once totally different making it harder for those in Scotland to make a claim.

That said the percentage increase in Scotland during 2010 and 2011 saw an 18 per cent increase with England seeing a 20 per cent increase so it’s fair to say that when comparing both countries figures of medical negligence claim compensation cases that they are not on the same level they are in fact increasing in the same percentage brackets.

Medical Negligence has cost the Scottish NHS system more than 200 million during the past six years and this cost of damages is set to rise year on year. When averaged over the six years it has cost the Scottish NHS 35.6 million each year. The unfortunate fact is that all such funds do not go to the victim they are soaked up by health board defence bills and the claiming fees of the successful side which in reality is quite saddening as such fees should be capped at a limit to prevent a lot of the NHS budget being put aside.

Even more frightening is that during the six years a huge 2507 medical negligence complaints were lodged but not as yet turned into claims and may never be due to the time limitation but could have been increasing the rise in medical negligence claims even more so.

Impact of Medical Negligence on the NHS

There is no clear evidence as yet but it can be said that having to budget for huge compensation claims is having massive affects on the NHS in Scotland. According to the Shadow Health Secretary Jackie Baillie, mistakes can happen but they are very often due to medical staffs and health care workers being completely over stretched with resourcing not always being available and on a tough tight schedule that often is not always achievable.

Since 2009 an incredible 2500 nurses and midwives have been axed which to any mind professional or not can only be damaging to the health service and it puts greater force and expectation on a system that was already stretched to the max. It is not surprising that the number of cases of medical negligence are on the rise and if substantial medical negligence was present before so many valued hands were axed the only conclusion is that there is clear motive for why it is rising even further.

However although claims are actually on the rise according to the Health Secretary Alex Neil not all claims are successful and during 2011 and 2012 the costs of medical negligence cases was halved to 30 million compared to 60.7 million in 2011 and 2012. A clear argument for this though is that cases especially those that exceed 10,000 can take much longer than a year to be concluded so the actual bill for 2011 and 2012 could be a lot higher.

How to Claim Medical Negligence in Scotland

Medical negligence can vary in meaning but the generalisation of it is that it is treatment or a service provided by the medical environment i.e. a medical practitioner that has in some way caused you harm either by making a person more ill or actually creating a totally different illness which otherwise wouldn’t have been present. When a patient is injured through no fault of their own but through the actions of a health practitioner that could have been avoided then a negligence act has occurred.

That said all injuries that happen under the treatment of health care workers cannot always be considered as negligence, medical accidents or adverse accidents can take place. Such accidents may occur as there has been adverse effects or complications to a certain type of treatment or medication but no one is actually to blame.

Examples of medical negligence can include;

–          Failure to diagnose a patient’s condition which may lead the condition to worsen while the correct diagnosis is being worked out.

–          Diagnose a patient with the wrong condition which in turn can delay the true diagnosis and the patient may receive the wrong medication in the first instances and be delayed the correct medication causing the illness to worsen.

–          Wrong sight surgery, when surgery is performed on another part of the body which may have been fine and not needed treatment atall.

–          Complications of surgery, this can take on different forms as patients can have different organs affected by surgery some people may experience another organ being perpetrated or patients can have problems with the anaesthetic which can be very dangerous even cause brain injuries.

–          Failure to obtain consent, this can be when a health practitioner does not get consent in writing from a patients to go ahead with treatment. Sometimes patients are not completely informed of the risks of a type of treatment or surgery and if complications occur and the patient suffers not knowing that this problem could have occurred then a negligent act has been committed.

What happens if a negligent act has been committed?

First off the victim of the negligence should have treatment to try to correct any procedure that has caused them an injury or harm. They may feel that they want to transfer to a different hospital or just get a second opinion to ensure they know the full extent to which the negligence has gone. The next steps to happen are entirely the choice of the victim and maybe the victim’s family. If the people involved are just seeking information to why their standard of care slipped and an apology then simply writing a letter of complaint to the hospital may conclude this. Making a formal complaint can be done through the NHS Complaints Procedure and by doing so can give you detail of what happened and what went wrong which in turn can help towards making a decision of whether to claim compensation.

However, if the victim and family wish to pursue compensation then seeking out an expert solicitor in medical negligence maybe necessary as the claims process for medical negligence can be quite complicated. Inorder to understand the claims process access ‘A Study of Medical Negligence Claiming in Scotland’. It is important to understand that when making a claim for compensation may not always give you answers to why the negligence was committed or an apology you may deserve so going through the complaints department first should be considered.

Instructing a Solicitor

It is vital to investigate a variety of solicitors, find out how long they have been operating and their success rate in medical negligence cases so that you are sure that they have the capabilities to successfully lead you case. The solicitor will need full access to your case and all medical records. They may first have you assessed by a medical expert so that they can assess your case and evaluate its full potential. After the evaluation the solicitor will inform if the case will deliver in court and if they will take on the case.

Funding Medical Negligence Cases in Scotland

It has been suggested by many that the NHS Scotland is a public service to be envied and that the reputation is exceeding. That said despite its excellent reputation it is not completely fault free. Negligence acts can vary in degree and severity, some can end in minor incidents that patients will completely recover from while other more serious injuries can last a life time and can have life changing effects on the patient involved and also their family.

The cost of such consequences can have massive affects on both the patient and the health service. Obviously negligence does not just take place inside a hospital it can happen almost anywhere were treatment takes place and any patient pursuing a claim for compensation can cause them great financial consequences. However in all circumstances the patient will suffer more greatly as the practitioner who caused the harm will be covered through insurance but the patient may have to live with the consequences for the rest of their lives. The actual amount of compensation can run into millions if the quality of life that the patient is left with has been severely affected and the care that they will need thereafter is constant can run into millions.

Claiming medical negligence in England

Scotland in previous years have experienced fewer cases of medical negligence than England have which is largely due to how such cases are funded and were completely different for each country. England in April 2013 changed the way medical negligence claim cases were funded before this most cases were taken on No Win No Fee arrangements meaning that the victim if the victim was successful they would receive one hundred percent of their compensation, law firms getting their costs from the other side and would pay nothing if the case was lost. This changed in April 2013 after Justice of Secretary Ken Clark announced changes back in 2011. Although it meant that victims of negligence would still not encounter financial risk if they pursued a claim for medical negligence as they would still not have to pay anything atall if they lost but a percentage of their damages would be used for the solicitors success fee rather than them claiming it from the opposite side.

It was argued that defendants would settle even though they thought they was in the right and that the person should not be rewarded with compensation due to the fear of high legal bills brought about by the opposing side. The new agreements for victims of medical negligence to claim compensation come under conditional arrangement fees where solicitors could take upto 25 per cent of the compensation amount. Further detail of the changes can be accessed through the Ministry of Justice.

Claiming medical negligence in Scotland

Defenders in Scotland do not have to pay insurance fees nor do they have to pay success fees. If the defenders lose a case then the amount of compensation plus the cost of the court which is stated by the Auditor of the Court and are usually a lot lower than those of the English court are paid by the defendants. Usually only 50 per cent of legal fees are covered from defendants making many law firms over cautious when taking on any medical negligence cases. There are very few funding options for Scottish citizens pursuing a claim for medical negligence in Scotland making it considerable difficult. With many law firms having to incur very high costs before they even know if a case maybe successful atall, many are sceptical of taking cases on. Legal Aid in an option but the insurance premiums are considered very high.