Saturday, March 28, 2009

Medical negligence soars in Scotland as NHS pays out £5.25million for birth error case

Scotland has seen its biggest NHS payout for medical negligence which is on an increasing trend in Scotland.

While the NHS paid out £5.25m in this particular case, you can bet a substantial amount so far undisclosed went on legal teams attempting to defend against the action and defeat the family’s claim, who apparently spent years battling for compensation …

The Herald reports :

NHS pays record £5.25m for birth blunder

Exclusive by MARTIN WILLIAMS March 27 2009

The family of a boy left severely disabled at birth by a hospital blunder has received £5.25m in Scotland's biggest NHS compensation payout.

News of the award comes as new figures provided to The Herald show that clinical negligence payouts have reached epidemic levels in recent years, rising six-fold in just under 10 years.

The latest payout is at least £1.3m more than the total annual negligence bill for the whole of NHS Scotland for each year between 1997 and 2001.

Compensation claims in Scotland have totalled a staggering £37.5m in the last two financial years.

The boy's family had battled for years for compensation for their son, who is now aged nine, after they made a claim against the former Argyll and Clyde Acute Hospitals NHS Trust.

The record award was made by the two health boards, NHS Greater Glasgow and Clyde and NHS Highland, which took over the defunct board's responsibilities.

Details of the boy's case only came to light when his family made an application to the Court of Session for the release of £500,000 of the payout to buy a suitably adapted house.

It has led to new concerns about the number of negligence cases that are being dealt with out of court, ensuring there is no public explanation of what happened and what lessons could be learned from any mistakes made.

In 2007 the NHS in Scotland paid out a record £23m in compensation payments because of medical blunders. It amounted to two-and-a-half times the previous record paid out the year before, described then by the Scottish Government as "exceptional".

In 1997/98 the total paid out for clinical negligence by all health boards in Scotland was just £3.5m. It fell to just under £3m in 1999/2000, before rising to just under £4m the following year.

The sums paid out began to rise over the next few years, with annual payments totalling around £9m until 2004/05.

In 2007, some 9123 people were injured or killed by NHS staff error.

The burden of the £5.25m payout will be shared between NHS Greater Glasgow and Clyde and NHS Highland.

The sum eclipses the £3m handed over by NHS Tayside in what is now the second-biggest compensation payout for medical negligence.

NHS Greater Glasgow and Clyde would not provide full details of what happened or say whether an investigation was carried out.

The trust released a short and carefully prepared statement in response to The Herald's questions. It said: "I can confirm the NHS has made an out-of-court settlement to the family following the claim against the former Argyll and Clyde Health Board regarding the very sad circumstances that surrounded the birth of the family son in 1998."

No official from NHS Highland could be contacted.

Prominent legal experts say they are not surprised at the rising number of negligence payouts and believe there are more to come.

One lawyer, who asked not to be identified, said: "All the negligence claims I have dealt with involving a health board have all at some point ended up being dealt with out of court. It is all so predictable.

"Either the family involved gets cold feet because they feel there is too much risk and they cannot afford to take it all the way, or the health board settles before the case ever comes to court."

An interesting Editorial on Medical Negligence from the Herald also accompanies the above article :

Medical negligence

Money can never truly compensate for a catastrophic injury caused by avoidable medical negligence, but it can make a world of difference to the quality of that person's life. Today The Herald reveals that Scotland has witnessed its largest ever payout to a boy left severely disabled after a medical blunder during his birth: £5.25m.

However, while the total paid in medical negligence settlements has risen six-fold in recent years, Scotland still lags a long way behind England in the number and level of payments. The notion of Scotland as a "compensation culture", with "ambulance-chasing lawyers" bringing opportunistic actions is a myth. In fact, recently the number of claims north of the border has fallen and total expenditure is only rising because of a handful of very serious cases, predominantly children with cerebral palsy and requiring lifelong round-the-clock care.

Why is the level of compensation south of the border more than four times higher per capita than in Scotland? In England, the shrinking of the legal aid budget has led to the rise of the "no win, no fee" negligence case.

In Scotland, however, pursuers are reluctant to use this mechanism because the cost of insuring against losing such cases is not included as part of the settlement.

Not that no win, no fee offers any sort of panacea. Recent publicity has revealed that the fees charged by lawyers often account for more than half of the settlement and sometimes bear no relation to the work actually done. This is not merely distasteful. It is against the interests of taxpayers. The NHS budget should be paying for doctors and nurses, not lawyers. The more spent on lawyers' bills, the less there is for treating patients.

In its manifesto, the SNP promised to reform and simplify the payment of medical negligence but may now be baulking at the cost. The favoured model is the one operating in Denmark, which is more like British criminal injuries compensation than the present adversarial system for negligence cases.

It would certainly cost more than the current system, but patients who suffer avoidable injuries at the hands of doctors deserve to be compensated by society. At present, too many of them end up with nothing because of the paucity of legal aid and fear of losing.

Courts will continue to have a role to play in serious and complex claims such as cerebral palsy cases. Many of those who are compensated have to go through a long and arduous ordeal and almost invariably end up with an out-of-court settlement. This is in nobody's interests. It lacks transparency. It encourages a culture of denial and blame. And it is poorly aligned to learning lessons from systemic failures.

For all its faults, the English system involves the early sharing of relevant information between pursuer and health authorities. This results in more cases being dropped at an early stage and also more early settlements. There is no obvious reason why such pre-action protocols could not be employed in Scotland.

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