Original Article on Health Law

MALPRACTICE IN THE UNITED KINGDOM J. Leahy Taylor The end of the last century saw the development in the United Kingdom of medical protection and defense societies. Their history, objects, growth, and scope are outlined. Reference is made to leading cases of medical malpractice and to the relevant statutes. The relationship between the protection societies and the National Health Service authorities is dealt with and a comparison made of the relative situations in the United States and United Kingdom. Finally, recent trends are examined and views expressed about possible future developments in this field which will be the subject of recommendations by a Royal Commission on Civil Liability and Compensation for Personal Injury which is now sitting.

PROTECTION ORGANIZATIONS On each of my last two visits to the United States medical malpractice has been one of the subjects chosen by my taxi-driver with which to regale me on the run in from the airport. If I were to mention medical malpractice-or medical negligence, to use the term more familiar on this side of the Atlantic-to a London taxi-driver the odds are that he would have no clear idea of what I was talking about. This is perhaps the most noticeable difference between the situation in the U.S. and the UX.-in the latter, patients do not immediately think of litigation when some mishap or unforeseen incident occurs. It was just about a hundred years ago that doctors in the U.K. were beginning to show concern regarding the risk of negligence actions. What would happen then would be that after a case had been heard appeals would be made in the medical press to assist the unfortunate doctor with the expenses he had incurred, and we are told by Forbes in his Sixty Years of Medical Defence (1) that such appeals were seldom made in vain. The system was obviously less than ideal, and in 1885 the Medical Defence Union (MDU) came into being with the following objects: 1. To support and protect the character and interests of medical practitioners

practising in the United Kingdom. 2. To promote honourable practice and to suppress or prosecute unauthorized practitioners. 3. To advise and defend or assist in defending members of the Union in cases where proceedings involving questions of professional principle or otherwise are brought against them.

International Journal of Health Services, Volume 6, Number 4,1976 0 1976, Baywood Publishing Co.. Inc.

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1 Taylor 4. To consider, originate, promote and support (so far as is legal) legislative measures likely to benefit the medical profession, and to oppose all measures calculated to injure it: and for the purposes aforesaid to petition Parliament and take such other steps and proceedings as may be deemed expedient.

The annual subscription was ten shillings. The earliest days of the Union were not entirely smooth, and in 1892 the London and Counties Medical Protection Society-now the Medical Protection Society ( M P S ) was founded, followed in 1902 by the Medical and Dental Defence Union of Scotland. In the beginning the legal costs of the defense were met by the protection organization, but the member had to meet any awards which the court might make against him. In 1909 the London and Counties Medical Protection Society introduced indemnity insurance with a limit of two thousand pounds in any one year for an extra subscription of ten shillings per annum, and this lead was followed shortly afterwards by the defense unions. These three organizations have gone from strength to strength since those early days and now they have a combined membership of almost one hundred and fifty thousand doctors and dentists scattered throughout many parts of the world. Distinctions between the services offered by these organizations are minimal and they are all alike in not accepting members practicing in the U.S., though the MPS and MDU both have a substantial number of members in Canada. The scope of these societies is wider than simple indemnity insurance for they give advice to their members on medicolegal matters, assist them in disputes with their employing authorities, provide them with legal representation at inquests, enquiries and before national disciplinary bodies, give lectures on medicolegal topics to underand postgraduates, and arrange arbitration in disputes between members. As regards legal cases, the first criterion is: “Did the matter arise directly from the practice of the member’s profession?” and, while most of such cases are in negligence, matters of assault and defamation also arise. The second criterion is: “If the matter did not arise from the practice of the member’s profession is it one of general interest to the profession?” On this count matters of contract of employment and even of income tax have been deemed to come within the scope. Ever since the MDU was founded in 1885 the view has been expressed from time to time that the functions of the protection organizations should be undertaken by the British Medical Association (BMA), and from time to time proposals have been put forward to this effect. While appreciating the attractiveness of a single medical organization, experience suggests that the present, rather fortuitous, arrangement has positive advantages and especially perhaps where the vast majority of doctors are employed by or in contract with the state. The BMA is the profession’s voice in the determination of the terms and conditions of service in the National Health Service. Inevitably, questions arise as to the legal interpretation of the terms and of regulations made under them. That an organization which has not been primarily concerned in the drafting can pursue a member’s interest in seeking the interpretation has obvious advantages. This is not to say that there is no contact between the BMA and the protection organizations. There is close coopera-

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tion on committees where the BMA feels that their experience and expertise will likely prove helpful. The disciplinary body of the medical profession in the U.K. is the General Medical Council (GMC). Where a member of a protection organization is required to appear before the Disciplinary Committee of that body his protection organization will provide him with legal representation. In considering what guidance it should give to the profession, the GMC will consult with not only the BMA but also the protection organizations. There is no material difference in the running of the protection organizations. Each has a Council elected from its members, and the Council has complete discretion to act or decline to act in any matter put to the organization. Under the Council there are appropriate committees to deal with cases, finance, education, and so forth. The day-today working of the organization, which includes the giving of advice to members, arranging legal representation, undertaking malpractice cases, settling minor cases, and lecturing, is in the hands of whole-time doctors and dentists employed by the societies. At the time of writing the three organizations employ a total of fifteen doctors and three dentists. Subscriptions have risen since the original ten shillings per annum and are at present twenty-five pounds per annum for doctors and fifteen pounds for dentists. There was a further increase to forty pounds and twenty pounds in June 1976, and the indemnity offered for this subscription is unlimited. MALPRACTICE: DEFINITION AND CASES There is no essential distinction between the U.S. and the U.K. in the definition of malpractice. Students in the U.K. are taught that neghgence is a tort which consists in a breach of a duty of care resulting in damage. The four Ds are stressed: the Duty of care, a Dereliction of that duty, Direct causation, and Damage. The standard of care required is perhaps best illustrated by reference to some of the leading cases. Greater detail of these cases with full references will be found in Lord Nathan’s Medical Negligence (2) and the writer’s The Doctor and Negligence (3). For convenience the cases are dealt with chronologically. Lanphier v. Phipos (1838)-The Judge said: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure nor does he undertake to use the highest degree of skill. There may be persons who have higher education and greater advantages than he has but he undertakes to bring a fair, reasonable and competent degree of skill.” Van Wyk v. Lewis (1924)-This was a South African case but it is felt that the view expressed would be upheld in the courts of the U.K. “In deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which the practitioner belongs . . . but I desire to guard myself from assenting to the principle approved in some American decisions that the standard of skill which should be

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exercised is that which presides in the particular locality where the practitioner happens to reside.. . . The fact that several incompetent or careless practitioners happen to settle at the same place cannot affect the standard of diligence and skill which local patients have a right to expect.” Daniels u. Heskin (1935)-This was an Irish case in which a needle broke while the perineum was being repaired, and the doctor did not inform the patient. In dismissing the appeal one Judge said: “It is clear that there are some matters which a doctor must disclose in order to afford his patient an opportunity of deciding whether she accepted his view or wished to consult another doctor, and an opportunity to make a choice between alternative courses. . . . On the other hand there are matters which the doctor must decide for himself having accepted the responsibility of treating his patient and having regard to his professional skill and knowledge on which she relied.” A second Judge said: “I cannot admit any abstract duty to tell patients what is the matter with them or to particularize, to say that a needle has been left in their tissues. All depends on the circumstances.. . . I do not wish to suggest that a doctor would always be justified in keeping such knowledge to himself.” Mahon v. Osbome (1939)-“The standard of care the law requires is not insurance against accidental slips. It is such a degree of care as a normally skillful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence.” And: “As it is the task of the surgeon to put the swabs in, so it is his task to take them out . . . unless there be evidence that the nature of the case be such that no search of any description-be it by eye, finger or mechanical means-was possible. A surgeon cannot show that he used reasonable care by saying: ‘1 relied on the nurse’s count’.’’ Crawford u. Board of Governors of Charing Cross Hospital (1953)-A patient’s arm was extended and abducted for some two hours during an operation while a transfusion was being given and a brachial plexus palsy was found postoperatively. The anesthetist admitted that he had not read an article in the Lancet referring to this danger, and the plaintiff was awarded damages of &4,000. The Court of Appeal reversed this decision and held that failure to read every article in the medical press could not amount to negligence. Hatcher Y. Black (1954)-The left recurrent laryngeal nerve was injured at thyroidectomy and negligence was alleged in respect of failure to warn the patient of this risk. The Judge commented: “In the case of an accident on the road there ought not to be any accident if everyone used proper care and the same applies in a factory; but in hospital when a person goes in who is ill and is going to be treated, no matter what care you use there is always some risk. Every surgical operation involves risks. It would be wrong and indeed bad law to say that simply because a misadventure or mishap occurred, thereby the hospital and the doctors are liable. . . . It would mean that a doctor examining a patient or a surgeon operating at a table, instead of getting on with his work would forever be looking over his shoulder to see if someone were coming up with a dagger. For an action for negligence against a doctor is for him like unto a dagger . . . you must not therefore find him neghgent simply because something happens to go wrong, as for instance if one of the risks inherent in an operation actually takes place. . . .” As regards the question of warning

Malpractice in the United Kingdom / 631 the patient the Judge said: “It is for you to say whether you think that he [the doctor] told her that there was no risk whatever or he may have prevaricated to put her off as many a good doctor would rather than worry her. But even if YOU think that he did tell her, is that a cause for censure?” The court found for the defendants. Roe v. Ministry of Health (1954)-Two patients were given spinal anesthetics and suffered serious paralysis. It was discovered that the paralysis had been caused by phenol leaking through invisible cracks in the anesthetic ampoules. The judicial comment ran: “It is so easy to be wise after the event and to condemn as negligence that which was only misadventure. . . . Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors like the rest of us have to learn by experience and experience often teaches the hard way. Something goes wrong and shows up a weakness and then it is put right.” Hunter v. Hanky (1955)-“To establish liability by a doctor where deviation from normal practice is alleged three facts must first be established. First of all it must be proved there is a usual and normal practice. Secondly, it must be proved that the doctor has not adopted that practice, and thirdly (this is of crucial importance), it must be established that the course the doctor adopted is one that no professional man of ordinary skill would have taken if he had been acting with ordinary care.” Bohm v. Fnem Hospital Management Committee (1957)-The plaintiff suffered fractures of the pelvis during electro-convulsive therapy given without relaxants. Neghgence was alleged in respect of failure to warn the plaintiff of the possibility of fractures and failure to use relaxants. An expert witness stated that he was opposed to the routine use of relaxants. The Judge said that the plaintiff would have to show that he would have refused treatment if warned and that the defendants were not negligent if they acted in accordance with a practice which had the support of a responsible body of medical men merely because another body took an opposing view. Moore v. Lewisham Group Hospital Management Committee (1959)-A patient had a cholecystectomy under a spinal anesthetic, and paralysis of the left leg followed. Expert witnesses disagreed on the justification for the use of spinal anesthesia in such a case. In finding for the defendants the Judge stated: “The courts could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form of treatment as opposed to another when there was a difference of informed medical opinion as to their merit .” Junor v. McNicol (1959)-A consultant ordered penicillin but the house surgeon, being unaware of the order, prescribed on his own initiative an inadequate amount. The house surgeon was sued and held not to have been negligent on the ground that his duties were to carry out the consultant’s instructions and in the event he had exercised initiative beyond the instructions received. Coles v. Reading Hospital Management Committee (1963)-A patient with a crushed thumb was seen by a nurse at a cottage hospital and instructed to go to a nearby general hospital for tetanus prophylaxis. The patient failed to do so. A general practitioner who saw the patient later assumed that as he had been treated at hospital, the matter of tetanus prophylaxis would.have been dealt with. The patient developed

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tetanus and died. The hospital authority was found negligent in that the need for attendance at the general hospital was not adequately stressed and nor was any written instruction given. The general practitioner was found negligent in failing to check that the patient had in fact had adequate prophylaxis. Hope v. Wyatt (1970)-A general practitioner was about to leave his consulting room one morning to carry out an emergency visit when a patient arrived complaining of abdominal pain. The patient was about seven months pregnant and had failed t o keep an antenatal appointment the previous week. The doctor examined her briefly, the examination included a blood pressure reading but not a urine test. Finding nothing severely amiss, he prescribed an alkaline mixture and said he would visit the patient at home the next day. When the doctor visited as promised he found his patient in a state of preeclampsia, and although from that point onwards everything possible was done, she developed severe eclampsia with cerebral symptoms and was left with a degree of paresis and various mental troubles. The patient sued, alleging that the doctor should have carried out a more complete examination and that had he done so, treatment for the preeclampsia would have been instituted earlier and full recovery could have been anticipated. The court found for the doctor, considering that having regard t o all the relevant facts, he had carried out an adequate examination and-the most important point-he had appreciated that his examination was necessarily incomplete and had therefore arranged to see his patient again as soon as reasonably possible. Laing v. Tilbuty and South Essex Hospital Management Committee (197 1)-A general practitioner was injured in a road accident and taken t o hospital by ambulance. He walked in and asked the casualty officer t o stitch a small laceration in his scalp. The casualty officer tried unsuccessfully to persuade the practitioner t o stay for a skull x-ray. About an hour after leaving the hospital the practitioner was brought back deeply unconscious. Operation revealed an acute subdural hematoma, and the practitioner died eleven months later without regaining consciousness. The Judge decided that someone at the hospital had likely been told that the practitioner had been unconscious immediately following the accident, and on that ground found for the plaintiff, though the award was small because of the very poor prognosis in any event. Robinson v. The Post Office and McEwan (1973)-An employee of the Post Office slipped on a ladder, cutting his leg. It was some seven hours later that he consulted his general practitioner who gave antitetanic serum. Nine days later the patient developed encephalitis thought t o be due to the serum. He was left with physical and mental disabilities, and sued the Post Office and the general practitioner. The Post Office admitted liability for the laceration of the leg but adopted the plaintiffs case against the GP in respect of the encephalitis, saying that tetanus toxoid and antibiotics rather than the serum should have been given. Finding for the GP and against the Post Office, the Judge held that it was foreseeable that having sustained a laceration owing to the admitted negligence of the Post Office, the employee would see his GP who would give antitetanic serum, and that therefore the Post Office was liable for any untoward effect. This finding was upheld on appeal. Langley v. Campbell (1975)-The court determined that it was neghgent for a

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general practitioner not to have investigated the possibility of malaria when, having diagnosed influenza in a patient recently returned from Uganda, the patient failed to show signs of recovery within three or four days. Case Incidence It is, of course, difficult to speak with any certainty about the number of cases, the first difficulty being to define a case. The first the doctor knows of trouble brewing is either when he receives a letter from the patient’s solicitor or when his employing hospital authority informs him that the patient or solicitor has made a complaint. The original solicitor’s letter may make an allegation of negligence, or alternatively, it may merely pose questions or even simply ask for a report. The reply to the solicitor’s letter may be the end of the matter, or a writ may be issued. The Limitation Acts require actions in respect of personal injuries to be commenced within three years from the time of the incident; or, if the plaintiff was not aware of his injury within the three-year period, then he must commence his action within three years of his becoming so aware. It is apparent, therefore, that one cannot speak of the number of cases in any one year until some years later, and even then complete accuracy is impossible, as matters thought to have been abandoned may, years later, be resurrected. Solicitors very seldom inform potential defendants they they do not intend to proceed. With these provisos, then, a look at the figures: the Medical Protection Society has a total of 62,000 members, and of these 26,000 are doctors practicing in the U.K. When cases have proceeded to the point where a Statement of Claim has been issued and expert opinions have been taken, the matter comes before the Cases Committee of the Society to determine whether the action should be defended or a settlement explored. In the years 1973, 1974, and 1975 the number of cases against doctors in the U.K. considered by the Cases Committee has totalled 269, 282, and 227, respectively. The Medical Defence Union recorded in its annual reports that in 1972 6,784 written requests were received for advice or assistance. Of the 236 cases concerned with malpractice referred to its solicitors, 4 were fought in court and all were won, 82 were settled, and 150 were abandoned or settled by another party. In 1973 there were 6,712 written requests; of the 281 cases concerning malpractice referred to solicitors, 9 cases were fought in court (of which 7 were won), 84 were settled, and 188 were settled by another party.

Protection Organizations and the Department of Health and Social Security

In the National Health Service hospital doctors of whatever grade are employees of hospital authorities. General practitioners, on the other hand, are independent contractors. The result is that while the general practitioner can only be sued individually or through his partnership, in the case of a hospital doctor the plaintiff may sue the doctor, the hospital authority, or both.

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In the early days of the National Health Service friction was caused between hospital authorities and doctors as each party endeavored to defend himself in isolation or indeed on occasion sought to pass any liability that might be proved on to the codefendant. Such a situation could but benefit the plaintiff, and in 1953 an agreement was reached between the Ministry of Health-as the Department of Health then was-and the protection organizations. The first item of this agreement was that where both hospital and doctor were sued, either defendant might settle by accepting sole liability. If both or all defendants decided to settle, they would do so in such proportion as they might agree between themselves, or, in default of agreement, in equal shares. If the defendants agreed to defend, then they would agree on the proportion in which they would meet any award which might be made, and again, in default of agreement, shares would be equal. Where either the hospital alone or a doctor alone was cited, the defendant would have complete discretion as to whether the case should be settled or fought. The defendant might, however, approach the other party in appropriate cases and seek a contribution. This agreement has worked well for over twenty years, and it is seldom indeed that an amicable agreement cannot be reached between the hospital authority’s solicitors and those of the protection organizations. LEGAL ASPECTS OF MALPRACTICE The two main statutes concerning malpractice and upon which general damages are dependent are the Fatal Accidents Acts of 1846 to 1959 and the Law Reform (Miscellaneous Provisions) Act of 1934. Until the passing of the 1846 Act (Lord Campbell’s Act) the rule was that “In a civil court the death of a human being cannot be complained of as an injury” (4). The Fatal Accidents Acts permit dependants of the deceased to claim compensation for the loss of income and this is assessed on an annual basis and a multiplier used in accordance with the age, state of health, etc., of the deceased. In practice it is usual not to apply a multiplier much greater than fifteen, whatever the age and health of the deceased may have been, as this is regarded as taking care of the normal vicissitudes of life. The Law Reform (Miscellaneous Provisions) Act of 1934 mitigated the effect of the common law rule which was that the death of plaintiff or defendant extinguished the rights of action in tort. The Act provided that, with certain exceptions, causes of action subsisting against or vesting in the deceased should survive against or for the benefit of his estate. Accordingly, a claim could be made for such items as pain and suffering experienced by the deceased and for loss of expectation of life. The rights under this Act are additional to those conferred by the Fatal Accidents Acts, though the benefit is often slight as the sums awarded for loss of expectation of life are derisory. There is at present some pressure for the abolition of this head of damage. There are three further statutes worth mentioning. The Partnership Act of 1890 lays down that a partnership is liable for loss or injury caused to any person to the same extent as is the partner whose act or omission caused the loss or injury. The

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importance of this in medical practice is that it behoves every member of a partnership to ensure that his partners remain in benefit with their protection organization. The Law Reform (Contributory Neghgence) Act of 1945 states: “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. . . .” The Legal Aid Acts of 1949 to 1964 brought legal advice and representation to those whose financial standing would have made legal proceedings unthinkable. An intending litigant can apply to a local legal aid committee which will assess what contribution, if any, he should make to the cost of proceedings, having tirst determined that a prima facie case exists. These Acts have been of undoubted help to many but have, at the same time, done less than justice to the successful defendant against a legally aided plaintiff. Such a defendant can only get judgment for his costs if the court considers it just and equitable and if otherwise he would suffer “severe financial hardship.” No insurance company or organization which undertakes professional indemnity would ever be considered to suffer “severe financial hardship” and it will therefore never obtain its costs against a legally aided plaintiff, quite irrespective of the merits of the case. This results in the situation arising not infrequently where it may be cheaper, or at least no more expensive, to settle a case than to contest it. In such circumstances the protection organization will certainly contest if a principle is at stake or if the member wishes to defend. Where, however, there is no point of principle and the member wishes to avoid publicity, an agreement may be reached with the plaintiff that he withdraws his allegations of negligence in open court on terms endorsed on counsel’s brief. These terms will state that an ex gratia payment of an agreed amount will be made. This procedure is, however, not available in the case of a child plaintiff for any settlement in respect of a child must have the approval of the court.

Junes In Great Britain jury trials in personal injury actions are very rare. In Northern Ireland and in the Republic of Ireland jury trial is the usual procedure. Few of us can perhaps resist the temptation to be generous when someone else is financially responsible, and experience shows that identical cases will attract greater damages in the Republic than in Northern Ireland, and these in turn will be more than those which a Judge sitting alone would award in England. And the distinction goes beyond the amount of damages. A case which is considered defensible in England may be considered indefensible in Ireland, and in New Zealand, another country where jury trials were the norm before the enactment of their Accident Compensation Act. Juries in Timaru and Tipperary are alike in their practical expressions of sympathy for an injured plaintiff and sometimes not inclined to probe too deeply into the matter of causation, This is not an unimportant issue,

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for if a society is not prepared to accept that a certain procedure carries a risk despite the use of all reasonable skill and care, should that society have the benefit of that procedure? This was an issue that faced the Medical Protection Society recently in Ireland in a case of paralysis following a cervical disc operation, and the matter was eventually compromised at the door of the court.

Legal Fees Lawyers-whether barristers or solicitors-in the United Kingdom are not permitted to accept work on a contingency fee basis. The client approaches a solicitor, and, unless he qualifies for legal aid, he is responsible for the solicitor’s fee quite irrespective of the result of the action. Barristers, who alone have audience in the High Court (where actions involving claims of more than &l,OOO are generally heard), and the solicitor agree on the brief fee, for which the client is also responsible. Following the decision of the court, it is customary for costs to follow the event, i.e. for the unsuccessful party to be ordered to pay the costs of the successful party, but this is a matter within the discretion of the court, and, as has been said, different rules apply for the legally aided litigant. RECENT TRENDS

Types of Cases As has been intimated, a look purely at legal actions must necessarily give a view of the type of incident which gave rise to allegations of negligence several years previously. While the reporting of incidents is capricious (some doctors report every brush with a patient while others mention a horrific series of events with complete sang froid), nevertheless it is from such reports that the clearer picture perhaps emerges. Failure of communication between doctors or between doctor and nurse may now have become the most common source of malpractice litigation. The radiologist observes a lesion missed by the casualty officer, and the system whereby such a patient should be recalled breaks down. Misunderstandings over the telephone result in inappropriate treatment. The anesthetist does not look at the general practitioner’s letter wherein posthalothane jaundice on a previous occasion is recorded. Sheer illegibility of handwriting has led to chlorpropamide being dispensed where chloramphenicol was intended, with fatal results. A practitioner’s unfamiliarity with an oral contraceptive led to his having originally spelled it correctly, then crossing out two letters. The pharmacist, instead of checking, dispensed a multivitamin preparation with predictable results. A poorly designed antenatal form led to the examination of the breasts going unrecorded. The patient developed carcinoma of the breast during her pregnancy and subsequently died. Negligence has been alleged in respect of failure to examine the breasts. The doctor concerned is certain that she did examine them but for some inexplicable reason the place on the form for the recording of the examina-

Malpractice in the United Kingdom / 637 tion comes not under the examination section at all but among the personal details normally completed by the nurse prior to the patient's seeing the doctor. Drug errors are assuming a more important role in recent years. In the past there has been a feeling among physicians and general practitioners that they were paying for the negligence of surgeons while they themselves were at minimal risk. The attitude of the protection organizations has been that while subscriptions are at their present level any attempt to have different rates for different specialties would result in all paying more to cover the extra administrative expenses involved. But drug errors have altered this picture. A junior hospital doctor gave forty times the maximum intrathecal dose of cephaloridin to a young man when, very possibly, no treatment whatever was required, and the results were catastrophic. The major effect was a loss of memory so profound that he was unable to recall what had occurred even a minute or two ago. This made even reading a book impossible and he was unemployable. Settlement was reached for E85,000,and when last heard of the patient was attending some clinic in the U.S. and claimed to be improving with intermittent carbon dioxide therapy. Intrathecal medication has figured prominently in drug errors, but misplaced decimal points, unfamiliarity with contraindications to various drug mixtures, inadequate laboratory control, and prescriptions being repeated without regard to the danger of undue prolongation of therapy, have all led to disaster. Anesthetic accidents have in recent years led to a number of substantial claims. While in some cases the inexperience of a junior doctor has appeared to be a prime cause, other cases have concerned very experienced anesthetists who somehow failed to observe that respiration had become inadequate until irreversible damage had occurred. The risk of jaundice following repeated halothane has been a matter of dispute in the medical press, and while views may differ, it was not possible to defend the anesthetist who gave a second halothane anesthetic without having read the GP's letter making reference to the previous postanesthetic jaundice. Practices dictated by pressure of work, such as leaving a patient in inexperienced hands while inducing the next, or having to accept phone calls or otherwise deal with administrative matters of the anesthetic department while in charge of an unconscious patient, have been other sources of trouble. Failed sterilization, especially vasectomies and laparoscopic procedures, have given rise to a large number of complaints and in some cases a compromised settlement has been reached. It is, however, probably true to say that the fact of failure of either procedure would not necessarily be considered negltgent, and, especially with vasectomies, more claims are resisted than settled. Where cases have to be settled it is usually because of some untoward factor: inadequate sperm testing, giving a guarantee of success or incorrect advice, further operation revealing no evidence of a tube having been touched, failure to read a pathology report showing absence of tube from specimen, and so forth. As to what a patient might succeed in claiming in court, there is as yet no certainty. On the one hand, it is not thought that the court would expect a plaintiff to go to the extent of having an abortion or having the child adopted to mitigate her loss, yet on the other,

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could she claim the cost of education and upbringing, and, if so, how would one calculate an offset to allow for the pleasure the child would in all probability bring? For the time being the dominant factor of these cases seems to be that neither plaintiff nor defendant relishes the publicity which the first such case will evoke. The Law Commission has reported in favor of granting legal rights to the child bom alive in respect of any damage suffered in utero. Legislation on this matter may follow, and one can but be anxious regarding the effects on the medical treatment of all females of child-bearing age and indeed on the pharmaceutical industry. One can imagine that the determination of the balance of probabilitjes in such cases will tax the resources and ingenuity of the justiciary. Another problem likely to confront the protection organizations shortly is that of radiation of the pregnant woman. There is general agreement that except in case of urgency abdominal x-ray should be confined to the ten days following the first day of the menses but in such a matter errors are bound to occur and sooner or later a child’s deformity will be blamed on such an error. COMPARISON BETWEEN THE UNITED STATES AND UNITED KINGDOM The basic differences are quickly stated: commercial insurance carriers on the one hand, non-profit-making professional societies on the other; premiums varying with specialty and track record as distinct from a flat-rate subscription; juries as opposed to judges sitting alone; attorneys dependent on their contingency fee as opposed to counsels and solicitors whose incomes are related to the result of the case only in that this determines the source from which it comes; legal aid for those below a cehain income level; and finally, the amounts of the awards. The major difference, I would suggest, lies in this last point, the amount of the awards. If I have a preference for professional societies, I have also a vested interest in them, and if I rather shrink at the thought of a professional man working on an all-or-nothing basis, I must acknowledge that it can only be because I am uncertain as to whether I could maintain a high professional standard under such a system. But when one compares American and English awards, the wide disparity surely suggests that something has gone seriously amiss. There can be no absolute values put on human suffering and disability, but where the value is such that it deters a doctor from attempting to assist a patient from fear of the financial implications, then the public interest must surely assert itself. The sort of case that is completely at variance with the U.K. position is typified by Williams v. City of Detroit (9,where an award of $750,00 was handed down for the death of a six-year-old following delay in treating a fractured skull. This was not a case of a child lingering in pain over many months for indeed she died on the operating table. In the U.K., assuming negligence was accepted, settlement would have been achieved for about &750 plus funeral expenses. No attempt would be made to evaluate the parents’ grief, and the general damages in such a case are intended as nothing more than a token payment in respect of loss of expectation of life. The U.K. attitude is open to criticism on the basis that as regards children and adults without dependants it is in general cheaper to kill than to maim. On the other hand, is there not something

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very distasteful about parents receiving substantial financial gain from the death of their child? The largest settlement in a medical negligence case in the U.K. was made last year and was of the order of 2130,000. The case has not been reported, but concerned a doctor patient who, during the course of an operation on his spine, had lengths of chorda equina removed in the belief that they were guinea worms. Reference has already been made to a settlement of E85,OOO and there has recently also been one of some 270,000 concerning failure to diagnose malaria. Little more than a year ago, the highest settlement was 264,000 and was in respect of an eighteen-year-old youth who was left with little more than a vegetable existence following an anesthetic tragedy. Another large settlement also concerned with anesthetics was for 250,000 and in this case the patient, who was without dependants, died within a matter of months. Not surprisingly, there have been no attempts to limit damages in the U.K., though the question of annual payments rather than a single lump sum is raised from time to time. Although interest can now be claimed on awards and is therefore also reflected in settlements, continuing inflation will doubtless lead to further consideration being given to this matter.

THE FUTURE In 1973 the government set up a Royal Commission on Civil Liability and Compensation for Personal Injury, and it is expected to report in early 1977. There is some anticipation that it will report in favor of no-fault compensation for road accidents and perhaps also for industrial and other sources of injury. So far as medical negligence is concerned, there is anxiety that this may fail to receive adequate attention and be lumped with all or some other sources of injury in whatever recommendations may be made. Recommendations of Royal Commissions do not of course necessarily pass into law. Many lie gathering dust for years or at least until someone sees that there is political capital to be made. This one, however, will certainly spark off a lively debate, and views will differ between those who would retain the status quo and those who would wish to see a social security system in which all control would be in the hands of the state and injury and illness would be treated alike. If, then, legislation does follow the Commission’s report, it is unlikely that medical negligence will receive separate treatment. Whatever may be thought of the essential difference between a fit man who meets with a road accident and the ill patient who suffers a complication of his treatment, it will probably be thought unacceptable that one should receive prompt compensation while the other must wait upon the law’s delays. It is probably true to say that there is at present a degree of dissatisfaction with the view that compensation must depend upon proof of fault. Many feel that society should do more to succor the injured, and the glaring inequality between one who can prove fault and one who cannot disturbs the public conscience. Arbitration, compensation for special damages without proof of fault, legal proceedings for any general damages claimed, compulsory accident insurance, and many other alternative proposals will doubtless be put forward.

640 / Taylor It will be for the medical profession to see that the patient, and especially the high-risk patient, does not suffer from schemes that are primarily aimed at quite different targets, and for those who serve the profession to see that no-fault compensation does not in effect become no-fault liability. REFERENCES 1. Forbes, R. Siwfy Years of Medicul Defence, p. 1. The Medical Defence Union, London, 1948. 2. Nathan, Lord. Medical Negligence. Butterworth & Company, London, 1957. 3. Taylor, J. L. The DoctorundNegligence, Pitman Medical, London, 1971. 4. Baker v. Bolton, 1 Camp., 493, 1808. 5 . Williams v . City of Detroit. Michigan Circuit Court, Wayne County, Docket No. 182 809,1975.

Manuscript submitted for publication, February 10, 1976

Direct reprint requests to: Dr. J. Leahy Taylor The Medical Protection Society Limited 50 Hallam Street London WIN 6DE, England