Clinical Negligence Claims
Faster 'No Fault system for clinical negligence claims?
A new plan to introduce 'quickie compensation claims in Scotland has been met with a mixed response from British claims specialists. The plan is to allow victims of medical negligence to make claims without having to prove the responsibility of organisations or individuals. Experts are currently investigating whether the scheme allowing NHS patients to claim compensation even if negligence cannot be proved is a workable system.
The current system requires claimants to prove legal responsibility and clinical negligence, which according to the Scottish government leads to an 'unpleasant and stressful system' leading to lengthy and expensive court cases. They believe that the sheer complexity of medical negligence cases can actually dissuade some victims from pursuing a claim. Under the new 'No Fault' proposal, a patient would still have to prove that injuries or deterioration in condition was a direct result of medical negligence, but would not have to establish blame or responsibility. The government claims that this system is similar to the one already in place for criminal injuries compensation. The review into this option is being carried out under the leadership of Professor Sheila McLean, director of the institute of law and ethics at Glasgow University. Other members of the group will be drawn from organisations including the British Medical Association, the General Medical Council and the Royal College of Nursing as well as laymembers from the public.
"This could actually over-complicate an already difficult area of legal controversy," worries Nicholas Jervis, Solicitor (non-practising) and managing director of claims specialist firm 1stClaims. "Everyone will be watching the process very closely. The biggest worry is that without any form of safeguard this legislation could lead to a two-speed system, with separate legal challenges potentially scuppering a case half way through the process," he adds. The real problem is that for medical negligence cases to be awarded compensation two parts of the claim have to be proven; the negligence itself and causation. In standard medical negligence it has to be shown that the person or persons responsible for inflicting further suffering or injury on the victim have acted below what would be expected of a competent clinician of equal experience and training. By taking away the need to prove responsibility of individuals or organisations, that aspect of the case is effectively removed.
On the other side of the argument health authorities are worried that the onset of 'quickie medical negligence claims' could result in a sharp increase in the number of cases brought, possibly costing the NHS hundreds of thousands of pounds in additional legal bills. "On first sight it looks like the Scottish government are on the side of the victim by introducing this concept, but if its approved and becomes a working model for medical negligence claims in Scotland, it could actually make things far more difficult," says Nicholas. "The other concern is that health authorities may be reluctant to perform certain operations because of the worry that a medical negligence case could be brought without any actual individual blame. That leaves the authorities as primary health care suppliers liable for cases brought that would otherwise be brought against individuals," he explains.
The 'No Fault' system is still very much in the discussion stage and as yet no definite decision has been made to introduce it. The review group has yet to work out if the system is actually workable and how it would incorporate alongside existing clinical negligence arrangements already in place.
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