The field of clinical negligence is a complex and controversial one. With actions usually being raised in the Court of Session due to their complicated nature, the litigation process has, until recently, often been extremely lengthy, with much of the investigation being carried out by both parties once the action was raised.
Winning a clinical negligence action is not a straightforward matter, as the legal test for professional negligence is very high (far higher than the test for other types of negligence). To establish liability, the pursuer must show that the doctor has been guilty of such a failure that no doctor of ordinary skill would be guilty of committing if he had been acting with ordinary care.
The pursuer must also prove causation, i.e. that the failure has resulted in the pursuer's loss (i.e. the outcome would not have occurred, but for the negligence).
Once liability and causation have been established, the question of quantum must be addressed, i.e. how much compensation the pursuer is entitled to. When assessing the value of any claim, there are several heads of claim that will be considered. The main three are solatium (compensation for the pain and suffering experienced by the pursuer), past and future wage loss, and services (in other words, the additional assistance the pursuer now requires from friends and family as a result of their injuries, or services that the pursuer is no longer able to provide as a result of their injuries).
Only if the pursuer is able to prove liability, causation and quantifiable loss will they be successful in a clinical negligence claim.
Due to the complex nature of these claims, a great deal of evidence must be gathered, often from numerous expert medical witnesses, before an evidential hearing (a proof) can take place. The Scottish jurisdiction has had, until recently, very little requirement for pre-trial discussion and disclosure between the parties involved. For example, under the old regime, productions - i.e. the evidence that is going to be referred to during the evidential hearing - did not have to be lodged until four weeks before the proof. This meant that expert opinion had to be sought as a matter of urgency and at short notice and, consequently, that meaningful discussion and negotiation between the parties could often not commence until shortly before the proof was due to start. Many cases did not settle until parties were at the doors of court.
On 1 May 2013, the Court of Session rules were amended to introduce Chapter 42A, whose purpose is to administer the case management of complex clinical negligence and personal injury actions. The new rules will automatically apply to actions for clinical negligence and personal injury that are being dealt with under the ordinary procedure.
In accordance with these new rules, it will be necessary for parties to identify the key issues in dispute (and indeed those matters which can be agreed) at a much earlier stage in proceedings. This will, hopefully, promote transparency and co-operation between parties and lead to the swifter administration of justice and resolution of claims.
A pre-trial meeting must take place three months before proof, in the hope that a settlement may be reached sooner (which will allow court time to be freed up for other cases).
Under the new rules, all productions must be lodged four months prior to the evidential hearing, allowing parties to fully consider the strengths and weaknesses of the opposition's evidence and to complete their own further investigations before they embark on meaningful negotiations.
With a real focus on the frontloading of investigations and shorter timescales, it is hoped that these rules will encourage the prompt and efficient determination of these actions.
If you believe you have been the victim of medical negligence, please contact our Clinical Negligence team for advice.