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It has long been established that success in pursuing a case for personal injury in Scotland depends on whether or not it can be proven that there was a breach of the general duty to take reasonable care.  This test is relatively broad.  However, in respect of claims for medical negligence, the test is much narrower.  It is a more complex area of law and requires a higher standard.  This, of course, is a policy decision.  Medical professionals are also human.  They have bad days, like everyone else and the argument is that they should not be held liable for every trivial error made.  Trivial errors are part of everyday life.

The test for medical negligence is set out in the case of Hunter v Hanley.  Here, it was held that in order for a claimant to succeed in establishing a claim for medical negligence against a health professional, all three of the following must be proven:

  1. that there is a usual and normal practice to be followed;
  2. that this usual and normal practice was not adopted; and
  3. the course that the medical professional did adopt was one that no ordinarily skilled practitioner in that position would have taken, when acting with ordinary care.

In other words, it is not sufficient to prove that the actions of the practitioner were unreasonable or did not quite meet the gold standard.  Instead, it must be shown that the actions were such that no other practitioner in that position would have taken them.

In respect of medical cases governing consent, the relevant case is Montgomery v Lanarkshire Health Board; a case that was taken all the way to the Supreme Court.  This action modernised the test for giving medical consent and made it more patient-focused.  It is no longer down to the doctor to decide what they believe the patient should be told; but to assess matters on what a reasonable patient would want to know.  The patient must be made aware of material risks in connection with treatment, and also informed of any reasonable alternatives – the risks of which must also be explained.  The question of materiality is also down to the patient – what would a reasonable person in the patient’s position be likely to attach a degree of significance to? 

Once negligence has been established – with reference to either of the scenarios above – it must also be proven that there is a direct link between the negligence and the patient’s injuries.  In other words, if a patient’s injury did not arise directly as a result of the negligence (or materially contribute), then there is no case.  Similarly, if the patient would have been in the same position even if negligence had not occurred, then there is no case.

So what are you to do if you believe that you may have been subjected to medical negligence, causing injury?

Firstly, file a complaint with the NHS.  There are helpful templates on the Citizens’ Advice Bureau website - https://www.citizensadvice.org.uk/scotland/health/nhs-healthcare-s/nhs-complaints-s/

There are strict time frames governing the submitting of an NHS complaint.  It requires to be lodged within six months of the event that you wish to complain about; or six months after finding out that you have a reason to complain (although this cannot be any later than twelve months after the event).  

Once you have received a response and you have decided that you do wish to pursue a civil case for damages (compensation) against the NHS or a private medical provider, it is important to instruct a solicitor who is knowledgeable in the area.  There are, again, strict time frames governing legal action.  You must raise court proceedings within three years from the date that your harm occurred.  There are some minor exceptions such as for those who are under the age of sixteen or those who do not have mental capacity.  Generally, however, any attempt to pursue a case after the three year time limit will not be entertained.

Blog by Natalie Donald, Solicitor

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