The long road to finding an alternative to litigation

The Scottish Government has appointed a review group to end what they term as the ‘blame culture’ inherent in medical negligence claims and create a ‘person-centred’ healthcare system.

The government says that litigation is expensive and time-consuming. It causes patients worry and stress. They claim that such claims distract doctors and nurses from doing their jobs.

They propose that a patient will only be compensated if they suffered harm lasting at least six months, causally connected to the avoidable harm.

In 2009 the Scottish Government established the No Fault Compensation Review Group. The group reported in 2011 and recommended a no-fault scheme for medical injury.

This was followed by a public consultation; but no legislation.

Now the government has published a consultation for a no-blame as opposed to a no-fault redress scheme.

If a patient suffers harm from clinical treatment in Scotland, they may raise a medical negligence action in the Scottish courts. They are required to prove that no ordinarily competent professional, acting reasonably, would have acted as their doctor did. They must also establish that those actions caused them some harm. So how does the proposed scheme differ?

Compensation would be founded on the concept of ‘avoidability’: could the harm have been avoided by the use of reasonable care? Expert evidence may still be needed to establish what constitutes avoidable harm or reasonable care.

The suggestion is that any compensation awarded will be based on the same guidelines and past decisions as at present. The assessment will mirror existing court actions, albeit with a cap of £100,000. Claimants may be worse off. Under the current Scottish system courts must disregard NHS care when assessing compensation. The consultation suggests replacing this with a guaranteed package of treatment and care from the NHS and local authorities.
Crucially, the right to litigate remains. Those who feel under-compensated can pursue a court action to ‘top up’ their damages although patients will be prevented from using their no-blame award to fund a litigated claim. How this will work in practice is unclear.

Litigation will not be avoided. It is likely that satellite litigation will arise on the application of the scheme in particular on the meaning of avoidability, on causation and on quantum. Significant expert evidence may still be needed and although the cost of litigation should be reduced it is unlikely to be by much.

The patient succeeds only if they prove they suffered harm which could have been avoided by the use of reasonable care so the scheme does not truly avoid blame. There is also the potential that acknowledging avoidable harm will encourage patients to seek out other forms of complaint.

All those involved in medical negligence claims welcome steps to reduce protracted litigation and unnecessary expense. However, it is far from clear that this proposal would accomplish that.

Responses to the consultation are due by 24 June 2016.

 

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