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.

NHS Chiefs attack FOI Commissioner - FOI lets the public know too much

NHS Lothian Chief Executive James Barbour not too happy FOI is doing its duty ..

The Edinburgh News reports :

NHS leaders hit back at Information boss

NHS Lothian has hit out at the Information Commissioner after releasing the PFI agreement to build the Edinburgh Royal Infirmary.

Chief executive James Barbour has written a stinging letter to Paul Dunion, claiming that comments in the press "led to a misrepresentation of NHS Lothian's actions".

Mr Dunion had claimed NHS Lothian failed to provide justification for withholding the information, and that it had incorrectly claimed the cost of providing it would be excessive.

Prof Barbour cites three different pieces of legal advice saying the information should not have been disclosed after a freedom of information request from May Docherty in January 2005. He wrote: "There were also suggestions in the media that NHS Lothian had delayed in complying with this request. In fact, the review took over two years and from July 5, 2005 until August 11, 2006 we heard nothing from [your office] . . . If you had directed NHS Lothian to disclose the contract at any point during this period of delay, then Ms Docherty would have had the information . . . in a timely manner."

Borders General Hospital denies bed shortage as MSP raises criticism

Borders General Hospital, infamous for its conflicting statements on health policy in the Scottish Borders, mixed in with infamous medical negligence actions, and a concerted policy of lying to families of patients who have died under questionable circumstances, hits the headlines yet again as Christine Grahame MSP, occasional champion of peoples rights in the Borders if the face fits, raises the prospect of Borders patients having to travel outwith the region for treatment.

John Glennie, Chief Executive of NHS Borders denies it of course, but fails in the believability stakes as always ... time for a replacement ?

BBC News reports :

Bed 'shortage' allegation denied

NHS Borders has denied claims it could face a bed shortage due to changes made at Borders General Hospital.

The number of beds available in four wards has recently been reduced from 120 to 92 as part of a refurbishment programme.

SNP MSP Christine Grahame said this could lead to patients being forced out of the region for treatment.

NHS Borders Chief Executive John Glennie said that such a situation has "never been the case".

Plans to reduce the number of beds were recently confirmed at BGH.

Ms Grahame claimed that the bed reduction - combined with the closure of community hospitals - had led to serious problems.

I am very concerned that patients and their families may have been left anxious and uncertain by Ms Grahame's statement - John Glennie NHS Borders Chief Executive

"Once again it appears NHS bosses have failed to properly consult and pressed ahead with plans which could lead to elderly patients being transferred to beds in the Lothians because of shortages here," she said.

"As we approach the winter the demand on beds, particularly for elderly patients, will increase."

The MSP said the move had been "badly thought-out" and she wanted to know what provisions were being made to have patients treated locally.

Mr Glennie said there was no risk of elderly patients being transferred to NHS Lothian for treatment which should be provided in the Borders.

"I am very concerned that patients and their families may have been left anxious and uncertain by Ms Grahame's statement," he said.

'Annual preparations'

"The recent refurbishment and upgrading of the four elderly care wards at the Borders General Hospital has been a major investment in improving the environment for patients and staff."

Mr Glennie said that both patients and staff had been "very enthusiastic" about the changes made.

However, he said there would be a further trial period before considering any longer term plans.

"Throughout the ward refurbishment there have been no bed shortages," he said.

"As part of our normal, annual preparations for winter, we also have the capacity to increase the number of beds available very quickly.

"It has never been the case that we would expect patients to travel to Lothian, as suggested by Ms Grahame, for care that should be offered locally."

no shortage of beds is the official line then ... but there seems to be ...

Dying woman's family heard tirade

The family of a woman who lay dying on a hospital bed had to listen to a teenager swearing and spitting at staff nearby, a court has been told.

The relatives of the woman heard Kevin Cook, 17, of Cheviot Road, Hawick, carry out his tirade at Borders General Hospital on 19 October.

He pleaded guilty to a breach of the Emergency Workers Scotland Act 2005.

Cook was sent to a young offenders institution for 52 days, which was backdated to 22 October.

Selkirk Sheriff Court heard that Cook had been taken to hospital suffering from head injuries.

However, he turned on two nurses as they tried to fit an intravenous line in order to administer fluids.

I want you and others to know that this kind of behaviour at Borders General Hospital will be dealt with severely - Sheriff Kevin Drummond

He lashed out with his arms and swore at them and a struggle developed with a security officer trying to calm him down before police were summoned.

"This was going on in an area of the accident and emergency department where in the next treatment area a lady had been admitted with a cerebral haemorrhage and was effectively brain dead," said procurator fiscal Graham Fraser.

"Her family and friends were with her in her final moments.

"The son's recollection of his last moments with his mother was his behaviour."

Defence lawyer Iain Burke said his client deeply regretted his behaviour.

Sheriff Kevin Drummond told Cook this kind of action would not be tolerated.

"I want you and others to know that this kind of behaviour at Borders General Hospital will be dealt with severely," he said.

SNP defy calls for openness as Deputy First Minister supports continued secrecy over radioactive water contamination details

Its not all good news that's coming out of our new Scottish Government as the Sunday Herald reveals the SNP's Deputy leader and Cabinet Secretary for Health & Wellbeing, Nicola Sturgeon, has supported the previous orders of the Labour/LibDem Scottish Executive to legally challenge the disclosure of information relating to radioactive water contamination in Dumfries & Galloway - a case which is now to be heard in the English House of Lords.

How odd the public are being denied a right to know of a major problem in this case .. why could that be ? perhaps the Nuclear industry have gone knocking on the door of our new Scottish Government reminding them of their place ? or just another case of Westminster orders must be obeyed ... and are it seems ...

You can read more about this story over at the FOI web log here : Sturgeon defends NHS in leukaemia case

Apologies for the lack of updates this week, staff have been on holiday.

The Sunday Herald reports :

Rebuttal

Robin Harper on secrecy

THESE ARE exciting times indeed; a newly shaped parliament breathing (some) fresh air into Scottish politics and a media and policy community getting excited at the new opportunities and progressive mood in the country.

How strange then, that the new deputy first minister and Cabinet secretary for health and wellbeing, Nicola Sturgeon, should back legal action against our own information commissioner and support action in the House of Lords to overrule a Scottish court.

Yes, it's true, but I still can't fathom it. Greens have sought information about the number of childhood leukaemia cases by census ward since the inception of the freedom of information law. The NHS refused to comply. Greens appealed to the Scottish information commissioner who then ordered the NHS to release the information, in a form that would not identify individuals. The NHS again refused, and appealed to the Scottish courts. The NHS lost the appeal. The court of session ordered the release of the information as it posed no risk to data protection or patient confidentiality. The NHS is now appealing to the House of Lords, and inexplicably, has the support of Sturgeon.

In a letter to me, the deputy first minister accepts the view that "Barnardisation" (named after statistician George Barnard), the statistical method of protecting individual confidentiality proposed by the Scottish information commissioner, is "not appropriate in this case". No reason is given, despite the system being a standard and accepted practice. I am faced with only an assertion, with no reasoning or argument. If she cares to approach the information commissioner or examine the findings in court, she would know this position is simply not true.

Her advice to the Greens is to meet the NHS to talk about it. Fine, but you have to ask what purpose this would serve other than to simply divert attention. If they aren't going to listen to the courts or independent commissioners, I doubt very much whether they'll simply hand over the information after a nice chat.

To give the Cabinet secretary some credit, she and her advisers have probably had their hands full with waiting lists and hospital closures, and have probably not given this issue much thought. It's time they did.

Health information is important for communities to access when considering health issues in their areas, especially the poorest communities who tend to live in the worst environments, with multiple development impacts on their quality of life. This is what environmental justice is all about. It was in vogue with Jack McConnell but then drifted off when it became obvious that policies like third party rights of appeal in the planning system would have to be put in place to give communities an equal say.

Sturgeon and the SNP have a chance to show Scotland, especially its poorest communities, that they will stand up for them and make sure they can find out the effect of certain developments on their health should they need to do so.

The case of NHS versus the Scottish information commissioner (and incidentally backed by the UK commissioner, who has responsibility for data protection) is to be heard in April in the House of Lords. It will be sad to see our health secretary backing secrecy, and even sadder that hundreds of thousands of pounds of taxpayers' money will be wasted trying to maintain secrecy and denying the public the right to know.

Robin Harper is co-convener of the Scottish Green Party and their speaker on education