While some believe a growing "compensation culture" is draining vital health services in the country, others who have tried to make medical negligence claims against poor treatment in the NHS have discovered such cases fall directly to the control of the indemnity insurers rather than doctors, as is same case when trying to pursue a negligence claim against most professionals in the UK.
Difficulties in obtaining legal representation in medical negligence cases in Scotland can be put down to the fact that the same indemnity insurers of the legal profession insure large parts of the medical profession and indeed other departments of Government & public services.
Trying to get one professional insured by a group of insurers to sue another professional who is insured by the same insurers has to be one of the most difficult things to achieve in court today ... and thus is reflected in the poor levels of legal representation available to the public - a well known scandal which an opened legal services market may bring to an end.
The Sunday Herald reports :
Fear of ‘compensation culture’ as Scottish NHS payouts more than double
By Judith Duffy, Health Correspondent
THE NHS in Scotland was forced to pay out a record £23 million in compensation for medical errors last year - but campaigners have warned that patients north of the Border are being prevented from seeking justice when mistakes occur.
According to new figures, the bill for clinical negligence claims more than doubled in 2006-7 compared to the £9.8m paid out the previous year.
Concerns have been raised that a growing "compensation culture" is draining vital health service resources. Last month, a record payout of £5m, awarded to actress Leslie Ash after she contracted a superbug in a London hospital, provoked a storm of controversy.
But the "exceptional" increase in Scotland is said to be due to a larger number of high-value settlements, and is only a small fraction of the £600m paid out annually by the NHS in England for medical injury cases.
Campaigners say difficulties in accessing specialist solicitors and legal aid in Scotland are preventing many patients from seeking compensation when they have been victims of medical injury.
Peter Walsh, chief executive of charity Action Against Medical Accidents (Avma), claimed the notion of members of the public being highly litigious was a "common myth".
"There is only a tiny fraction of people who could claim for negligence who ever actually make a claim," he said. "In Scotland, even with this big leap in the amount that has been paid out, it only really reflects just a small number of high-value claims.
"It is still just the tip of the iceberg of people who really deserve and need compensation who aren't getting justice."
Leading compensation lawyer Cameron Fyfe also pointed out that the current system of claiming compensation for injury from the NHS was a difficult process.
"You have to prove that no ordinary doctor or consultant would ever have acted in this way, which in layman's terms means it was a very serious error which no-one else would make," he said.
Despite this, Fyfe said the number of NHS negligence cases he was dealing with had risen by around 30% over the past 18 months.
"I get the impression that individuals are more educated about their right to claim compensation, especially medical compensation," he said. "In the past, people thought I can't sue my doctor' - doctors were like gods, really - but now people realise they are just human like the rest of us."
Ten years ago, the NHS in Scotland paid out just £3.5m in compensation, but by 2006/7 that had risen to just more than £23.1m. The largest amount paid out last year was by Lothian health board, which had a total bill of £7.2m.
John Matheson, director of finance at NHS Lothian, said this was due to a number of long-running cases being settled, with four cases accounting for 93% of the total.
He added: "Most claims of medical negligence occur in a small number of specialities, and steps are always taken to learn from rare incidents of this nature so that the chances of their recurrence are minimised."
The SNP pledged in its election manifesto to provide an alternative system for compensation, which would introduce a right to redress without necessarily having to go through a legal battle, an idea which has been backed by Avma and the British Medical Association.
Liz Macdonald, policy manager at the Scottish Consumer Council, also welcomed the idea of the "no fault" compensation scheme.
"At the moment, if you bring a negligence action it is a particular clinician who is in the firing line," she said. "If you have no-fault compensation, in a way it is easier for doctors to hold up their hands and say something did go wrong.
"In most of these cases, it isn't because an individual doctor or member of staff is at fault, it is because of the way the system is working."
She added: "All the research shows the thing people want most is an apology and an assurance it is not going to happen to anyone else. Only about 10% of people actually want compensation.
"There are these worries about opening the floodgates and massive increases in compensation, but you have to keep that in perspective as that is not what everybody wants."
A spokeswoman for the Scottish government said the total number of claims for clinical negligence cases had remained steady, with around 150 reaching settlement every year, and the amount of money paid out accounted for around 0.1% of health board budgets.
She added: "The Scottish government intends to introduce a no-fault system for compensation, which we believe will help foster a more open and respectful relationship between patients and clinical staff. We will consult fully on our proposals."
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