Hospital pass

In Scotland the amount paid out by the NHS to settle claims is a tiny proportion of the annual budget. There was much handwringing amongst MSPs when an increase in compensation payments was announced from £9.8 million in 2005-06 to £23 million in 2006-07. The reality is that even this increased figure represents only a very small percentage of the many potential medical negligence claims which come through the doors of solicitors every year.

Anyone checking the Law Society of Scotland’s database will find only a handful of accredited medical negligence specialists. Although there are around 380 firms listed by the Society as offering a medical negligence service, you will be hard pressed to find many solicitors who actively seek this type of work. For most, a medical negligence case involves clearing a series of high hurdles. Often a case that starts off promisingly becomes an unremunerative headache.

Medical organisations such as Action for Victims of Medical Accidents (Avma) have campaigned long and vigorously for a change in the way medical negligence claims are dealt with in Scotland. The truth is that none of the political parties has shown any real interest in addressing the issue. Anything which is perceived to take money away from the NHS is unlikely to win many votes. While the SNP pledged to introduce a “no fault” compensation scheme, it is doubtful that the very significant funding required will ever be made available for this. It seems that the current regime is with us for the foreseeable future.

Four options

So what can solicitors do to assist clients who have suffered a form of medical accident which may or may not amount to negligence? In the first instance a responsible solicitor would ascertain what a client hopes to achieve in relation to their treatment. Not all clients see remedies in terms of money. As a general guide the following should be considered:

1.    A complaint using the NHS complaints procedure (www.adviceguide.org.uk/scotland). Leaflets are available from Health Rights Information Scotland (www.hris.org.uk), and CAB now operates the Independent Advice and Support Service for NHS patients and the public (www.cas.org.uk). Some key points of the procedure are that complaints must be made within six months of the event which was the cause for complaint, or within six months of the patient becoming aware of a cause for complaint and normally no longer than 12 months from the event; complaints should be investigated by NHS and responded to wherever possible within 20 working days (but rarely are); if a complainer indicates an intention to instigate legal action the complaints procedure will be immediately suspended. Solicitors may assist with letters of complaint and the process can be helpful in information gathering and assessment of prospects. What is rarely helpful is for a solicitor to intimate a claim based solely on a client’s account of events. Not only does this close off the option of a complaint and SPSO investigation; it is virtually certain it will not advance matters for a client.

2.    A complaint to the Scottish Public Services Ombudsman (SPSO) (www.spso.org.uk). The Ombudsman will investigate complaints from members of the public claiming to have suffered hardship or injustice as a result of maladministration or service failure. Generally the complaints procedures must have been exhausted at a local level before the SPSO will become involved. The time limit for making a complaint is normally 12 months from the event, or within 12 months of the complainer becoming aware that there were grounds for complaint. In many cases the Ombudsman will commission an independent report, and this can assist considerably in focusing matters.

3.    A complaint to the General Medical Council (GMC) or General Dental Council (GDC). A complaint may be appropriate to one of these bodies if a client is concerned that a doctor or dentist is not fit to practise, or may be a risk to patients. The procedure is fully set out in their leaflets/websites.

4.    Making a reparation claim.
Assessing medical negligence claims comes with experience. The real battleground in many medical negligence cases is not breach of duty but the difficult question of causation. Most victims of medical accidents were ill or injured before their treatment was given, and by the very nature of their complaint, are ill or injured at the end of the process. Your client has the burden of proving the connection between the alleged breach of duty and the damage which they say they suffered as a result. Birth injury claims require particular expertise. There will also always be cases where the complexity, expense and professional time involved in investigating and pursuing a claim are out of proportion to its potential value.

So how does this knowledge of the issues affect the advice we give our clients? In the first place they must be warned about the complexity of this area of law and that the outcome of any claim is far from guaranteed. Secondly, and essentially, they must be advised that in most cases litigation is required in order to obtain a satisfactory settlement. Funding requires to be addressed at the outset. There is little point in encouraging a client to spend significant sums on recovering records and obtaining expert reports if they are then to be told, as time bar approaches, that in order to progress matters they face exposure to uncertain and potentially unlimited further expense.

Accordingly, before any work is undertaken, it is essential to have a very rough idea of the potential value of the claim, the number of experts who will be required to be funded for reports, and how the matter can be taken to a conclusion if litigation is necessary: in effect, a formal case plan which is understood and agreed by the client. Eligibility for legal aid will be considered if that service is offered. Clients should be encouraged to check their insurance policies for any legal expenses cover there might be. Many legal firms now have funding products available for clients, albeit many exclude medical negligence. A referral to a specialist firm for funding may be necessary. It will rarely be appropriate to encourage a client to embark on medical negligence litigation on a fee-paying basis without indemnity for the other side’s costs.

The standards issue

The Law Society of Scotland is currently drafting standards for the profession. One of those standards, although not new, is that it is essential that solicitors only accept instructions for work they are competent to do. It is important that we as lawyers don’t make matters worse for victims of medical accidents by failing to offer properly informed advice.