A Study of Medical Negligence Claiming in Scotland

The study examined the current system for medical negligence claiming in Scotland. The study was commissioned to inform the work of the No-fault Compensation Review Group which was established in 2009 to consider the potential benefits to patients of the introduction of a no-fault compensation scheme for medical negligence claims in Scotland.


4.1 Our research has examined medical negligence claims starting from the point at which a patient perceives that a problem has occurred, through to making a complaint and then pursuing a legal claim. Patient grievances appear to involve an often complex and overlapping mix of concerns about communication breakdown, poor staff attitudes, inadequate general care, and generally feeling disempowered. A grievance, and indeed a medical negligence claim, is not necessarily linked to a negligent clinical event, and many pursuers could not easily distinguish between negligence and poor service. Pursuers have invariably attempted to have their concerns listened to via the complaints procedures. When this has failed they have sought legal redress. A no-fault scheme will not necessarily address these non-clinical aspects of care, and this may leave some patients continuing to feel disgruntled. Nor will it necessarily decrease the rate of adverse events. The reporting of errors may be improved by removing the healthcare provider's fear of facing litigation. Nevertheless, there are other barriers to the reporting of events. The reduction of adverse events requires institutional learning.

4.2 Our interviews with pursuers suggest that their major motivation is to gain recognition for their narrative around a medical 'error'. In their view negligence is too difficult to prove. This suggests that much needs to be done to make clear the distinction between causation and liability. Our interviews with other stakeholders suggest a view that a 'no-fault' system might open the 'floodgates'. Others with direct experience of claims suggest that the current delict system means that pursuers' solicitors are able to mediate the process through shaping pursuers' expectations and screening out unmeritorious claims. There seems to be little if any support for capping any new scheme.

4.3 Much of the discussion arising from our qualitative research has focussed on how improvements in the complaints system could give complainants a greater sense that they were being listened to and that steps would be taken to ensure individuals and institutions learned from their complaint. Our quantitative analysis has demonstrated that settlement of a claim is influenced by a range of factors including the experience of medical negligence claims of the pursuer's solicitor and the financial value of the claim. Relatively small value claims appear less likely to result in settlement. This leads us to a view that small claims might be better dealt with in a development of the complaints system which permitted a moderate level of financial payment in some claims. Data on costs supplied by CLO indicates that currently the costs of dealing with small claims which are settled, on average, exceed the awards made. This is a further factor suggesting that small value claims might be best dealt with by an alternative method.

4.4 The Working Group has proposed the setting up of a 'No-fault' Scheme for medical injury. In the Appendix to this Report we provide upper and lower estimates for the cost of such a scheme in a typical year over the recent past. We also provide a base-line estimate of the current negligence scheme's costs for a typical year of £18,057,455. Based on a range of plausible assumptions we estimate an upper and lower estimate for the proposed scheme's costs in a typical year. The upper estimate is £27,014,275 and the lower estimate is £18,357,455. The proportionate increase in public expenditure represented by our upper estimate is considerably lower than that estimated for the introduction of a no-fault scheme in England.

4.5 These wider objectives may not be achievable by a medical negligence scheme alone. It is important that a new scheme is tied into the entire process by which patients attempt to resolve disputes.


Email: Fiona Hodgkiss

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