Clinical Negligence Claims

Moreover, informing patients of the `unintended or unexpected’ harm may be perceived as admitting liability, thus led to a complaint or litigation. Therefore, medical professional may still be reluctant to report errors or disclose such information to patients as the fear of dispute and embarrassment would remain.

When medical error has resulted in injury to the claimant medical professionals are faced with an enormous predicament: the desire to do the right thing out of regret; the need to avoid self-embarrassment and disrepute to themselves and ultimately of the NHS. Therefore, although both the above reforms mark a fundamental step towards encouraging a culture change within the NHS, but they cannot be said to ensure a cultural change
Law firms are usually hesitant to take on clinical negligence cases as they would incur very large pre-action costs before the likelihood of the success of the claim can even be determined. Therefore, many claimants are usually unable to make an SFA with a solicitor, especially if the claim is of low value. Therefore, many claimants are unable to purse their claim and have no access to
Conclusion

The importance of access to justice for clinical negligence claims was stated by Peter Walsh, chief executive of Action against Medical Accidents:
“ it is necessary to ensure that victims are given a reasonable opportunity to present their claim and obtain a fair outcome from the court…as such cases are about real people whose lives have been ruined and who deserve justice.”

Successful clinical negligence claims act as a wake-up call because usually it is only when a case is won that the Scottish Government and the NHS address issues relating to patient safety and medical practice is brought to surface. Furthermore, clinical negligence claims provide courts with the opportunity to define the obligations of medical professionals and provide guidance as to what amounts to clinical negligence.

However, the adversarial nature of the current system acts as a disincentive to apologies, explanations and reporting of errors by medical professionals. The proposed statutory duty of candour aims to enhance communication between both parties in such cases. However, without sanctions in place for non-compliance the effect of this reform may be limited in ensuring such communication and reporting of errors as the fear of being subject to legal proceedings would remain. Similarly, even though the 2015 Act aims to encourage medical professionals to apologies in such incidents the possibility of being subject to legal proceedings