It is probably the most difficult situation for anyone pursuing a claim for medical negligence to accept – the treatment was negligent but yet no compensation is due. How can it be that a member (or members) of the hospital staff made a mistake considered by the court to be negligent but the Health Board can successfully argue that no money should be paid to compensate for the injuries sustained?

The answer is as a result of the test for medical negligence and how it is applied. In order to achieve compensation the test requires not only for the injured person to prove negligence but also that “but for” the negligence the outcome is likely to have been better. In other words, was the damage avoidable? It is not uncommon for negligence to be admitted or found (so a mistake was made) but for the case to be defended on the basis that the outcome was inevitable or at least the pursuer cannot prove that the damage is likely to have been avoided.

The principle is clear in that compensation will not be paid for mistakes from which no adverse consequences have followed. If a mistake has been made but no injury as a result then there is no claim. On the face of it this seems reasonable but pursuers in such a position often find it difficult to accept that despite being a victim of negligence the court won’t make any order at all against the negligent party. A recent example of this can be seen in the case of AW - v - Greater Glasgow Health Board where Drummond Miller represented a family suing Greater Glasgow Health Board for a seven figure sum. The action involved alleged negligence against the midwifery staff which the family argued resulted in brain damage to their son at around the time of delivery. After over 50 days of evidence (one of the longest running civil hearings in Scotland) the court found that the family had been successful in proving negligence but unsuccessful in proving that the outcome would have been different. The case therefore failed and no compensation paid.

The family's position was that the midwifery staff were negligent in failing to refer AW (the mother) to hospital for further examination following an antenatal visit at home. The Judge agreed and held that they were negligent in failing to refer as a result of the symptoms complained of but also in failing to measure the blood pressure and in failing to take a urine sample to test for protein. So far so good for the family – the midwives were negligent so doesn’t that mean compensation is payable?

The second part of the test is whether “but for” the negligence the outcome is likely to have been better and the damage avoided? This involves presenting expert evidence to the court and asking what would have happened had referral taken place and is that likely to have avoided the brain damage? Unfortunately for the family the Judge found that referral to hospital is unlikely to have resulted in earlier delivery and also that even had earlier delivery occurred the pursuer had not been able to prove that the brain damage is likely to have been avoided. The case therefore failed because, although the first part of the test could be met, the second part could not. The family are now left in the very unfortunate position that although there was a finding of negligence no compensation will be paid.

The decision is currently under consideration (in terms of an appeal) but this case is just one example of what is a very difficult outcome to accept. Some people might question whether this is fair but the test is clear in that there are two hurdles to overcome (negligence and causation) before an award will be made by the court.

It is essential when presenting cases of this nature that a specialised clinical negligence team provides proper advice and investigates the case thoroughly. The outcome will often depend on how the case has been presented/prepared and it is important that the evidence is put forward in a way as to give the best possible prospects of success. The family take some comfort from knowing that everything possible was done to achieve success and that the case is not yet over! If you require any help in investigating a clinical negligence case or wish to speak to one of our clinical negligence solicitors, please do not hesitate to contact us.