Scotsman Legal Review: Medical Negligence

Victims of tape and mesh implants took their case to the Scottish Parliament in 2014. Picture: Jane Barlow
Victims of tape and mesh implants took their case to the Scottish Parliament in 2014. Picture: Jane Barlow
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Medical negligence specialists remain busy with the 300 or so transvaginal mesh implant cases which are currently going through the Scottish courts.

Medical negligence specialists remain busy with the 300 or so transvaginal mesh implant cases which are currently going through the Scottish courts.

Around 1,850 women undergo mesh implant surgery in Scotland each year, which is a procedure commonly used by surgeons to treat urinary incontinence and pelvic organ prolapse, conditions that can occur in women after childbirth.

While widely used throughout the UK, Europe and north America, some mesh implants inserted into the abdomen have resulted in adverse side effects including severe and constant vaginal and abdominal pain.

Robbie Wilson, senior associate at Anderson Strathern, highlights these “mesh” cases as particularly interesting.

“Many women have suffered catastrophic and life-changing injuries as a result of the insertion of this mesh,” he says. “These cases have been a significant focus for us in the healthcare team.

“The principal reason for that is the cases often involve historic medical issues so there are a large number of medical records that have to be reviewed and investigated.”

Another development, dating from September 2015, is the introduction of the All Scotland Personal Injury Court which was designed to take a number of personal injury cases (claims under £100,000) out of the Court of Session.

Wilson’s area of focus is complex, high-value cases including birth injury. Where whole life care is required, these cases are often valued in the millions of pounds.

Wilson points to Montgomery v Lanarkshire Health Board (2015), in which the appellant sought damages on behalf of her son who was born with serious disabilities as a result of complications during delivery.

Looking ahead, a compulsory pre-action protocol is in the pipeline.

The planned compulsory protocol will require the earlier dialogue and exchange of documentation between parties.

“The hope is that an early exchange of information and documentation will facilitate settlement at the first available opportunity rather than at the end of a protracted court process,” says Wilson.

“The intention is that by February or March next year there will be a compulsory protocol but I think, perhaps, if there is an expectation there will be useful feedback on the outcome of the voluntary protocol before it becomes compulsory, that is a bit ambitious because the voluntary protocol only started in September.”

The Scotsman’s annual legal review looks at some of the most active areas of legal practice in Scotland. Informed by comprehensive data published by Chambers and Partners and Legal 500, the articles give exclusive insight into the work of more than 11,000 practising solicitors and over 460 practising advocates.