The Courier has reported that NHS Tayside and NHS Fife paid a combined £2,435,232.50 in compensation for claims involving their accident and emergency departments since the start of 2022: £1,662,232.50 in Tayside and £773,000 in Fife. While The Courier also reports deaths recorded in emergency departments, it is important to note that not every death equates to a legal claim or settlement.
Establishing grounds for a medical negligence claim
Losing a loved one is a difficult and distressing time for the families involved. A tough, but important, conversation often had with families who contact us is around whether the care provided to their loved one could give rise to a medical negligence claim.
What constitutes a duty of care?
Medical practitioners in A&E departments all over Scotland have what is known as a duty of care for patients they see. This duty begins from their first involvement with patients and can extend all the way through to being discharged. Depending on the circumstances, that duty can include appropriate assessment, investigation, treatment, referral and discharge advice. Relevant responsibilities may also include arranging follow-up and acting on outstanding test results.
Grounds for a successful claim
To begin establishing a successful claim for compensation, you must show that this duty of care was “breached”. In diagnosis and treatment cases, the question is whether the care fell below the standard reasonably expected of an ordinarily competent practitioner exercising the relevant skill. The assessment takes account of the circumstances and the knowledge available at the time, rather than judging the outcome with hindsight. The standard for an Emergency Department Doctor, for example, would be one of a reasonably competent Emergency Department Doctor in that scenario. Therefore, to show that the duty of care was breached, you need to show that the standard of care of a reasonably qualified Emergency Department Doctor was not shown and the standard of care was below what is expected. A different clinical approach or an unsuccessful treatment does not necessarily amount to negligence.
The role of independent medical evidence
This can be a tough test to meet. The court will require evidence from highly experienced and qualified medical practitioners in the same field to assist in commenting on the standards of the medical practitioner being criticised and whether these standards were below what is reasonably expected. Evidence can be led from both the injured party and the Health Board in their defence, but it is ultimately for the court to determine whether negligence has been established.
Linking the breach to the harm
Even if breach of duty can be established in court, or admitted pre-litigation, there is the second legal test known as Causation that is required before compensation can be awarded.
Causation is the legal link between the breach and the injury or loss for which compensation is sought. The court decides, on the balance of probabilities, whether the injury or loss would have been avoided but for the breach of duty. Put simply, if the same harm would have occurred even with appropriate care, a breach alone will not establish an entitlement to compensation for that harm. This is crucially important when looking at A&E cases and underlined in the article from The Courier, stating “….Emergency departments care for some of the most seriously unwell patients, including people who are approaching the end of life or who arrive with immediately life threatening conditions.”
Medical evidence in fatal A&E cases
One of the key questions in fatal A&E cases is whether, with the expected standard of care, the patient would have survived, even for a slightly longer period of time to allow a more dignified death or time for family to say goodbye, or whether upon arrival, regardless of the standard of care received, they had already succumb to their fatal conditions regardless of whatever the doctors could do. These are distinct questions requiring medical evidence; neither a poor outcome nor the possibility of a more dignified death is, by itself, enough to establish a compensation claim.
What to do if you have concerns about A&E treatment
For indivduals concerned about their treatment, or treatment a loved one has received, a useful starting point is to record a timeline of events and retain relevant correspondence and discharge paperwork. Reviewing the medical records and obtaining appropriate independent expert advice can help distinguish an unavoidable outcome from an injury or death caused by substandard care.
Speak to our personal injury team
Our expert personal injury solicitors can listen to your experience, explain the legal tests and advise whether there may be grounds to investigate a claim. Call us on 0800 731 8434 or make an enquiry online to discuss your circumstances.
