Medical negligence

The debate on compensation for medically injured patients has continued for many years, producing a variety of proposals and recommendations. Conclusions have been reached without an adequate understanding of the facts surrounding medical negligence cases. This study attempts to place many of the arguments and suggestions into perspective by examining both the legal and factual circumstances of medical negligence claims. The thesis is divided into three chapters; the first chapter examines the legal requisites of a valid claim against a Health Board. or doctor. The difficulties of evidence and proof, limitation of actions. and access to legal services are considered. Judicial policies are examined from the case law. The analysis suggests that patients face many legal and procedural hurdles due to the very strict parameters defined by the courts, before a claim is successful. The judiciary entertain a traditional deference to the views of the medical profession about their liability for negligence. The second chapter is concerned with ascertaining the factual circumstances of medical negligence claims, since reliance on judicial records presents a distorted and unrepresentative picture of the problem. In addition to providing a quantitative assessment, the data validate some of the conclusions based on a case law analysis and reject others. The procedures for obtaining compensation for medical injury demonstrate that the initiation, validation and ultimate resolution of a claim place many pressures on the patient. The data further suggest that access to compensation is constrained by the rules regulating the availability of legal aid, and the narrow interpretation given to the Prescription and Limitation (Scotland) Act 1984. The study shows that while delay in resolution of claims is inherent in the process, the medical defence organisations use tactics which exploit every weakness of the patient's bargaining position. The final chapter examines the scope for reform and outlines the general direction these considerations indicate. Alternative schemes, either complementary to or replacements for the present compensation system are considered. They reflect, to varying degrees, compromises on a variety of issues, yet they fail to deal effectively with the problems outlined in the study. In conclusion, the retention of delict is favoured following some procedural improvements. Greater involvement of the medical profession in attempting to reduce the incidence of medical injuries is suggested