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Medical Negligence – A Game of Settlements?

With the increasing encouragement of extra-judicial settlement in Personal Injury actions – most notably via the introduction of the Compulsory Pre-Action Protocols in Scotland (see our blog on CPAP here) – some might say that the power gap in legal dispute resolution has been narrowed. On the flip side, others might say that CPAP does not go far enough in balancing the scales, and providing fair access to justice for all.

A recent big-money settlement in London’s High Court re-engages the optimists, however.

A boy suffering a serious brain injury due to oxygen starvation at birth is to receive a £3.6 million settlement from the NHS. His lawyers sued Betsi Cadwaladr University Health Board citing clinical negligence. Despite continuing to deny liability, the NHS have agreed to pay 60% of the total claim value in settlement of the action.

Affirming the settlement, the judge stated it was in the boy’s ‘best interests’ and praised his parents’ ‘total dedication’.

Though an English case not encapsulated by the Scottish CPAP, one cannot help but wonder at the possibilities for fair settlement, should the scope of CPAP be expanded in Scotland to include medical negligence claims. Though ostensibly denying liability, the NHS’s unwillingness to risk a damaging finding of liability was clearly expressed in the massive settlement awarded to the claimant, well over half of the total claim value.

It is this writer’s view that the principle of fair access to justice outweighs the perceived national interest in protecting the reputation of the NHS. Opening up CPAP to medical negligence claims would allow more, genuine Pursuer’s to receive compensation for medical injuries, while at the same time reducing the burden on the public purse and judicial schedules due to unnecessary litigation.

In other words, opening up CPAP to medical negligence claims would be a Win, Win, Win.

If you would like to discuss making a personal injury claim of any kind, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: