As part of APIL’s Injury Awareness Week, here at Balfour+Manson we have been putting our heads together to touch on some of the ways which we can support clients through the claims process. In addition, with the recent announcement of the Scottish Maternity Inquiry due to start this autumn, we thought it would be helpful to outline your rights and options if you have any worries or concerns about the care, you or your baby received.
If you believe the care you received during pregnancy or childbirth fell below an acceptable standard, you may:
- make a complaint to the NHS; and/or
- pursue a claim for compensation.
These are separate processes with different purposes and time limits.
1. Making a Complaint to the NHS
Complaints to NHS Scotland
The NHS complaints process aims to provide explanations, investigations, and apologies where appropriate. It does not award compensation. It is a two-stage procedure. Stage 1 seeks for early resolution, and straightforward complaints are usually dealt with locally within five working days. Stage 2 deals with more complex complaints, and these require formal investigation before a resolution can be reached. The NHS should acknowledge a stage 2 complaint within three working days and normally respond within twenty working days.
Time limits for complaints
Complaints should generally be made within six months of the incident, or six months of becoming aware there was reason to complain. If you are not satisfied with the NHS response, you may ask the Scottish Public Services Ombudsman (SPSO) to review the matter. It is important to note that both complaints to the NHS, and escalations to the SPSO are entirely separate processes to a claim for compensation.
2. Pursuing a Claim for Compensation
What counts as negligence?
In order to be successful in a claim for compensation in Scotland, negligent care must be found, and this negligent care must have caused the injury or outcome.
In Scots law, the definition of negligent care was established in the case of Hunter v Hanley. A claimant must show:
- there was a normal and usual medical practice,
- the clinician failed to follow it; and
- no ordinarily competent clinician would have acted the same way.
It must also be proven that the negligent care caused or materially contributed to the injury. This is known as causation. Both negligence and causation must be found in order to be successful with a claim.
Expert evidence
Independent medical expert witnesses will provide their opinion on both negligence and causation. In cases relating to negligent maternity care, depending on the circumstances of the case, we would usually start with seeking input from expert Obstetricians, Midwives, or Neonatologists.
Informed consent
Patients are also entitled to make informed decisions about treatment. In Montgomery v Lanarkshire Health Board, the UK Supreme Court confirmed that doctors must explain the material risks of treatment, and reasonable alternatives.
In maternity care, this may include discussing risks associated with vaginal delivery and the option of caesarean section. A failure to provide adequate information may give rise to a claim if harm results.
Time limits for court claims
Claims for compensation are subject to a strict three-year time limit under the Prescription and Limitation (Scotland) Act 1973. The three years usually run from the date of injury, or the date the person became aware the injury may have been caused by negligent treatment. However, recent case law has seen the court apply the date on which the person became aware of the injury strictly.
Important exceptions
For children, the three-year period begins at age sixteen. If your baby has been injured during labour of birth, then this exception will apply to their claim. However, early legal advice is still recommended to make sure you know where you stand.
Why early legal advice matters
Making an NHS complaint, or an escalated a complaint to the SPSO does not stop the three-year time limit running for a claim for compensation.
Maternity negligence claims are complex and time sensitive. Medical records and expert evidence are often required before court proceedings can begin. If the legal deadline expires, you may lose the right to bring a claim entirely.
If you believe you or your child suffered negligent maternity care, we would be happy to discuss this with you. You can fill out our enquiry form here: Contact Us | balfour+manson Solicitors, or just give us a call at: 0131 200 1409. We have a dedicated and compassionate team who are here to listen.
Home > News + events > Negligent Maternity Care in Scotland: Your rights and options
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Robyn Coates
Negligent Maternity Care in Scotland: Your rights and options
As part of APIL’s Injury Awareness Week, here at Balfour+Manson we have been putting our heads together to touch on some of the ways which we can support clients through the claims process. In addition, with the recent announcement of the Scottish Maternity Inquiry due to start this autumn, we thought it would be helpful to outline your rights and options if you have any worries or concerns about the care, you or your baby received.
If you believe the care you received during pregnancy or childbirth fell below an acceptable standard, you may:
These are separate processes with different purposes and time limits.
1. Making a Complaint to the NHS
Complaints to NHS Scotland
The NHS complaints process aims to provide explanations, investigations, and apologies where appropriate. It does not award compensation. It is a two-stage procedure. Stage 1 seeks for early resolution, and straightforward complaints are usually dealt with locally within five working days. Stage 2 deals with more complex complaints, and these require formal investigation before a resolution can be reached. The NHS should acknowledge a stage 2 complaint within three working days and normally respond within twenty working days.
Time limits for complaints
Complaints should generally be made within six months of the incident, or six months of becoming aware there was reason to complain. If you are not satisfied with the NHS response, you may ask the Scottish Public Services Ombudsman (SPSO) to review the matter. It is important to note that both complaints to the NHS, and escalations to the SPSO are entirely separate processes to a claim for compensation.
2. Pursuing a Claim for Compensation
What counts as negligence?
In order to be successful in a claim for compensation in Scotland, negligent care must be found, and this negligent care must have caused the injury or outcome.
In Scots law, the definition of negligent care was established in the case of Hunter v Hanley. A claimant must show:
It must also be proven that the negligent care caused or materially contributed to the injury. This is known as causation. Both negligence and causation must be found in order to be successful with a claim.
Expert evidence
Independent medical expert witnesses will provide their opinion on both negligence and causation. In cases relating to negligent maternity care, depending on the circumstances of the case, we would usually start with seeking input from expert Obstetricians, Midwives, or Neonatologists.
Informed consent
Patients are also entitled to make informed decisions about treatment. In Montgomery v Lanarkshire Health Board, the UK Supreme Court confirmed that doctors must explain the material risks of treatment, and reasonable alternatives.
In maternity care, this may include discussing risks associated with vaginal delivery and the option of caesarean section. A failure to provide adequate information may give rise to a claim if harm results.
Time limits for court claims
Claims for compensation are subject to a strict three-year time limit under the Prescription and Limitation (Scotland) Act 1973. The three years usually run from the date of injury, or the date the person became aware the injury may have been caused by negligent treatment. However, recent case law has seen the court apply the date on which the person became aware of the injury strictly.
Important exceptions
For children, the three-year period begins at age sixteen. If your baby has been injured during labour of birth, then this exception will apply to their claim. However, early legal advice is still recommended to make sure you know where you stand.
Why early legal advice matters
Making an NHS complaint, or an escalated a complaint to the SPSO does not stop the three-year time limit running for a claim for compensation.
Maternity negligence claims are complex and time sensitive. Medical records and expert evidence are often required before court proceedings can begin. If the legal deadline expires, you may lose the right to bring a claim entirely.
If you believe you or your child suffered negligent maternity care, we would be happy to discuss this with you. You can fill out our enquiry form here: Contact Us | balfour+manson Solicitors, or just give us a call at: 0131 200 1409. We have a dedicated and compassionate team who are here to listen.