Colleagues may be interested also to know that there is now a signifcant possibility that the Scottish Government will set up a no fault compensation scheme for medical accidents similar to that operating in Sweden. This has been recommended by the McLean Committee, which reported this year. That will if it happens almost entirely remove medical cases from the civil courts. The report and associated material can be accessed at http://www.scotland.gov.uk/Topics/Health/NHS-Scotland/No-faultCompensation/NFCSGResponse

The reaction of the Scottish Government is stated as:

"The vast majority of the care delivered in our NHS is of the highest quality, but it is important that people who have suffered as a result of clinical mistakes should have some form of redress.

We are of the view that appropriate redress should not be delayed because a compensation claim can take years to go through the courts nor should precious NHS resources be spent on expensive legal fees.

The group has suggested that more patients could have claims resolved under such a system than achieve resolution through the courts at the moment – and preliminary analysis suggests that it is possible it could be achieved for around the same costs as the NHS currently pays in compensation and legal fees.

We now propose to investigate thoroughly how such a scheme would work in practice, both for the benefit of individual patients and the good of the health service as a whole. Further analysis of the cost implications will also be undertaken."

Causation questions will naturally arise under any such scheme, but are unlikely to get much publicity. The report does not say much about causation, but is proposing full compensation, rather than a tarrif system. Legislation setting it uthe scheme p might well sensibly include some specific provisions on causation.

John Blackie


Professor John W G Blackie
Emeritus Professor of Law
University of Strathclyde
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________________________________
From: Martin Hogg [mhogg@staffmail.ed.ac.uk]
Sent: 07 April 2011 15:09
To: obligations@uwo.ca
Subject: New medical negligence, causation/burden of proof decision: McGlone v Greater Glasgow Health Board

Colleagues may be interested in a decision handed down yesterday in the Court of Session, McGlone v Greater Glasgow Health Board, reported here:

http://www.scotcourts.gov.uk/opinions/2011CSOH63.html

and which was reported on the BBC website yesterday:

http://www.bbc.co.uk/news/uk-scotland-glasgow-west-12985344

The pursuer, who had had to undergo a radical hysterectomy, argued that the defenders had been negligent in failing to diagnose and report the presence of a cancerous or pre-cancerous lesion at a time when conservative treatment would have been appropriate and which, had it been undertaken, would have preserved her fertility. The defenders argued that, even had they not been negligent, the materially same course of treatment as was in fact carried out would have been carried out, to the same result.

The facts might have given rise to the potential for a Chester v Afshar type approach by the court. In the event, however, the judge (Lord Tyre) considered that it was for the pursuer to discharge the ordinary burden of proof as to what would have happened had there been no misdiagnosis and failure to refer for treatment. He distinguished Fairchild, McGhee, Hotson, and Chester: this was a case more like Wilsher, in his view, i.e. one in which the traditional approach to causation could produce a determination of what would have happened. He concluded:

"it is not my task in the present case to decide whether I am satisfied, to the standard which a scientist would apply in assessing whether something has been proved, the location, nature or size of whatever lesion or tumour was present in the pursuer's cervix in December 2005 and March 2006. My task is, rather, to determine, on balance of probabilities, after review of the whole of the evidence, whether the lesion or tumour present at that time was such that, had it been correctly identified and reported, the pursuer would have undergone appropriate treatment that was more conservative than the radical hysterectomy which was found necessary in 2008. Clearly that is not a straightforward issue, but discharge of the onus of proving it to the civil standard seems to me to be the type of task commonly faced by pursuers in medical negligence claims.

With this approach in mind, Lord Tyre holds, as a matter of fact, that if there had been correct interpretation of test results at an earlier stage in the proceedings, the pursuer would have been referred as a matter of urgency for further investigation.

Examining he medical evidence, he concluded that it was extremely unlikely that, at the point when misdiagnosis took place, there was already a tumour which had become invasive and sufficiently large to be symptomatic (para 55). He further concluded that, "if a correct report of the pursuer's cervical smear had been given either in January 2006 or in March 2006, the medical management which would have taken place would have been treatment by LLETZ or cone biopsy" [i.e. not a hysterectomy] (para 62). The case was put out for further procedure (i.e. for determination of, inter alia, the amount of damages, I assume).

So, the decision appears to be a classic example of a case where a Chester v Afshar approach is avoided by virtue of a judicial determination that a different outcome to that which occurred would have taken place had the patient been properly treated. At least, that is how I read it after a cursory first reading.

Martin Hogg
Edinburgh Law School