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From the hospital to the courtroom

ON the face of it, the rise in the number of medical negligence payouts in Scotland in recent years is worrying.

Between 2007 and 2009, there were an average of 335 cases per year; in 2010-12, the total was 395. The natural reaction to the figures is to fear the growth of a litigious culture around the NHS and a victory for law over medicine: the doctors lose, the lawyers win.

The reality is more nuanced. First, the number of claims paid in Scotland is relatively low compared to other countries – and other parts of the UK – and, as demonstrated by the case of Alastair Laing in The Herald today, medical negligence payouts are in fact a reflection of a much deeper, more important problem.

As Mr Laing explains, his action for compensation over the death of his wife four years ago is less about compensation and more about seeking an acknowledgement of his complaint and holding the appropriate people to account. This is typical of those who end up in the courts over alleged negligence by NHS staff. It is not that they are part of a sue-first-think-later culture or that they have been talked into going to court by ambulance-chasing lawyers (although certainly there are legal firms in Scotland who pursue such cases). It is that they have reached the end of their tether with the NHS complaints procedure.

A reform of this procedure to make it more patient-focused could help tackle the problem of rising negligence cases. When a patient complains, they are often just looking for an honest conversation about what happened, an acknowledgement of their worries and a reassurance that the mistake will not happen again. All too often, however, patients feel disempowered by the system; those who use it feel that they are fobbed off by inadequate explanations and no-one ever says sorry. A system that genuinely listens to complaints and acts on what they uncover would drive fewer patients into the arms of lawyers.

However, a malfunctioning complaints procedure may not be the only explanation for the rise in negligence cases. The NHS has come under increasing pressure in a target-based culture and it may be that one reason there are more negligence cases is that staff are being asked to do more in less time and with finite resources and, in these circumstances, they are more likely to make mistakes.

The rise in negligence cases may also reflect something else. For years, particularly in Scotland, the doctor was seen as infallible; now there is a much greater willingness to question that and hold NHS staff to account. This is positive, although the danger of patients using the courts to do this is that money that could be spent on patient care is diverted to defending court cases. Although all health boards in Scotland are required to pay into an insurance scheme against such cases, they are still required to pay any claim up to £25,000 from their own budgets. That is money that could be spent on patient care.

It may be the current system of awarding compensation on the basis of proving that medical staff were negligent needs reform – the Scottish Government is already looking at the pros and cons of a no-fault compensation scheme as an alternative. Whatever is decided, the problem of a rising bill for negligence cases will only be addressed if the complaints procedure retunes the perceived power imbalance between the NHS and the people it treats. When something goes wrong, patients must know where to go for help, they must feel listened to and most, importantly, if fault or negligence is found, it must be acted on. Otherwise, we should not be surprised when more and more patients head from the hospital to the courtroom.

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