The problem is not with causation. It is that government run schemes to
provide compensation for harm caused by other government run schemes
inevitably become devices to minimise compensation and thus increase the
likelihood of negligent conduct in the first place and make the injured
become involuntary contributors to the state for the injuries they have
suffered at the hands of the state. What an terrible idea this is.

-----Original Message-----
From: John Blackie [mailto:john.blackie@strath.ac.uk]
Sent: Thursday, April 07, 2011 10:58 AM
To: Martin Hogg; obligations@uwo.ca
Subject: RE: New medical negligence, causation/burden of proof decision:
McGlone v Greater Glasgow Health Board

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-faultCompensati
on/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
email: john.blackie@strath.ac.uk<mailto:john.blackie@strath.ac.uk>
Mobile: 07917728908
Home Office phone: +44 (0)131 202 6481
Home Office Address:
The Old Coach House
23a Russell Place
Edinburgh
EH5 3HW
Departmental Address:

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G1 1BA

phone: +44 (0)131 202 6481

fax: +44 (0)141 548 3639



________________________________
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