Sunday, 19 February 2012

Would No Fault Compensation In Medical Cases Serve Justice In Scotland?

Justice - "the quality of being just; integrity; rightness; the awarding of what is due", frequently missing when dealing with the law, particularly in medical negligence cases. As the parents of five children, my wife and I have had to make fairly liberal use of the NHS over the years. We have seen it at its very best, and at its worst - in the same hospital. It would seem to depend on which branch of the NHS one needs to use, that determines whether or not the service and treatment are even adequate, or first class.

About four or five years ago, I was told one of the arteries in my heart was narrowing but, that there was nothing to worry about as I had always kept myself very fit. In November 2010, I took a heart attack. I felt the first slight chest pain as I made my way to the office at 8.55am, was taken to the cottage hospital in Crieff twenty minutes later by a work colleague and, when told by the nurse I was having a heart attack, I laughed and said, "It cannae be a heart attack if I'm walking about like this." By 12.15 pm, I was in the ward at Ninewells in Dundee with a stent fitted and I haven't had a twinge since. The care from start to finish was excellent, as was the aftercare since and I was back in the office eight days after the attack. I couldn't have asked for better.

Last summer, my daughter was hospitalised with suspected meningitis and detained for three days, until on the Friday, they decided to discharge her. When I called to collect her, she was sitting in the reception area being violently sick, therefore I decided to take her back to the ward, explaining to the sister in charge and asked to see a doctor, as well as for something to ease the sickness. Over the next four hours and thirty minutes, I made three requests for something to ease the sickness and something to ease a headache caused by the constant retching. Over that entire period, not a single member of staff came near my daughter's bed, nor did any doctor appear. Across the ward, an elderly woman, who was almost paralysed down one side as the consequence of a stroke, asked me to ask a member of staff to take her to the toilet, as no one had answered her buzzer. The old lady was left in the toilet on her own and almost fifteen minutes went by before I was able to get a member of staff to take her back to bed. At the end of the four and a half hours, my daughter felt well enough to leave, which we did, telling one of the nurses - the shift had changed by that time - we were leaving. Did anyone try to stop us? No. Did I complain? Yes, to my daughter's GP. Was anything done about it? You must be joking.

The latest report shows that the NHS in Scotland paid almost £49 million in compensation for medical negligence in 2009/10. The figure was £38 million in 2008/2009 and the increase over the past decade has caused so much concern that Nicola Sturgeon and the Scottish Government have agreed that Scotland should move to a system of "No Fault Compensation" where it would not be necessary to prove medical negligence, for compensation to be paid to those who have been the victims of medical negligence. Some of the worst cases have involved mistakes at childbirth, with children left physically disabled or with severe brain damage. The largest sum paid - £5.75 million - went to a mother and her child who was left with cerebral palsy. The child was born in February 1994 but the claim was not settled - out of court - until 2010, which meant for sixteen years, the mother had to cope with a child so severely disabled, he required 24 hour attention, without the financial means to allow her to do so.

In cases such as this, the entire family is affected. Both parents are requried to sacrifice almost every other part of their lives; if there are other children, they also suffer, to say nothing of the quality of life endured by the primary victim. One of the most distrubing and despicable aspects of this kind of case, is the fact there is no limit as to how long the health authorities will prolong the agony of the family involved. I have learned to my cost, there are also no depths to which the medical staff will not sink in order to wriggle out of any responsibility for the tragedy which they caused. Medical notes will be "lost" or quite blatently altered to omit incriminating evidence, special reports will be presented, prepared by so-called "expert witnesses", despite there being no minimum standards for "experts" in this country. Of course, the claimants can also have their own "expert witnesses" and it is amazing that two or more "experts" can come to diametrically opposed opinions, not on questions of law, but whether or not some medical practitioner has actually committed an act of gross negligence. The defenders' experts will tend to find that no negligence took place.

The arguments in favour of having a system of "No Fault Compensation" tend to favour the assumption that it will change attitudes inside the NHS. The secretary of the BMA, Martin Woodrow, said, "It would address the blame culture inside the NHS which discourages physicians from reporting accidents and would end the practice of defensive medicine". This is not necessarily accepted by everyone in the profession, many of whom see the biggest problem is the level of legal fees, which according to some estimates take up 50% of total amounts paid out. Other critics of the system ask, what I consider to be the most important question of all, "If no one is ever held to be negligent, a possible consequence of a system where negligence does not have to be proved, how does the NHS weed out those who are incompetent?" It is also argued that it will in all probability, cut the waiting time before payments are made. There is no doubt the insurers or whoever is paying the bill for the compensation, which in many cases, the NHS knows is inevitable, quite deliberately use every trick in the book or that the legal system will allow, to delay cases coming to court. It took me ten years finally to be told, my case was being struck out and my daughter waited twelve years before she won an out of court settlement, which could have been agreed years earlier. There is no possible justification for that quite deliberate abuse of the legal procedures.

The No Fault system does nothing to address the problem of those groups in the public sector which have a general immunity from prosecution, no matter how guilty they are. Unfortunately this is not an area the Scottish Government has any intention of addressing and is an argument for another day. The final problem with adopting No Fault Compensation would be the levels of compensation to be paid. As so much of the total cost is legal fees, and this system would cut that substantially, it is difficult to see why there should be any problem in arriving at figures which would be fair and just - that word again - to the victims of medical negligence but it is anticipated this could be a major area of controversy. What no "system" will alter, is the perceived changes in attitude which now prevail inside the NHS. In years gone by, I could never envisage sitting in a hospital ward, asking three times for a nurse to attend to someone who was being violently sick over a four hour period, yet receiving no attention. Far less could I have ever envisaged being allowed to walk out of the ward, without anyone making any attempt to find out what was wrong. Perhaps there is a need to change the practice of defensive medicine but that is certainly not the most important attitude that needs to change.

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