Medical Negligence Litigation
205
MEDICAL NEGLIGENCE LITIGATION: THE NEED FOR REFORM by Nigel Harris FRCS In recent years there has been a number of welcome reforms in the conduct of medical negligence litigation. Pre-trial exchange of medical reports on liability as part of a 'cards on the table' approach, and the meeting of the two sides' medical experts (which surely ought to be a statutory requirement) has to some extent redressed the balance which has always significantly favoured the Defence; however, there is still some way to go before it can be said that the Plaintiff is not at a disadvantage. I suggest that there are certainly two areas which should receive consideration for reform of the present system. The non-legally aided Plaintiff
I have been instructed in a number of cases in which the Plaintiff is of humble means but does not qualify for legal aid. In a recent case, the medical evidence concerning a very serious elbow injury was that of a 67 year old Plaintiff who had a very good chance of succeeding at trial, and £20,000-£30,000 compensation could be anticipated. However, as always in these cases, the Defence was aware that she was not legally aided. They took advantage of this fact, which of course they are fully entitled to do, and a few days before the trial made a derisory offer of £3,000 as a 'nuisance' payment. Counsel advised acceptance because the risk of going to trial and losing was that her home would have to be sold. Under the circumstances the Plaintiff had little choice in the matter. This is not an isolated case, and it cannot be right that a Plaintiff's chance for compensation should in any way be influenced by such financial considerations. A further consequence of avoiding a trial and hearing the evidence is that the medical staff concerned receive no indication that their actions were possibly responsible for the Plaintiff's condition, and the same mistakes are likely to recur. Notwithstanding the obvious need to control strictly the means by which legal aid is obtained, there is nevertheless, a large group of persons who are unlikely to receive justice under the existing system. These cases clearly offer support for the protagonists of a no-fault compensation scheme. However, there are many disadvantages but it is not the purpose of this article to discuss them. It seems to me that a significant improvement to the existing system would result from a limited form of contingency fee arrangement for these difficult cases in which lawyers and Plaintiffs have to grapple with the question of the financial consequences rather than simply advising on the merit of the claim. The Plaintiff in the case I have quoted did not have to decide if she could afford to have her elbow treated at the time of injury. I do not expect her and others in a similar position to be asked to take the risk of losing their home in order to pursue their reasonable claim.
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I am quite certain that if she had lived in the United States the case would have gone to trial without financial risk. I hope therefore that lawyers will give further consideration to introducing contingency fee arrangements in selected cases, and there is of course no reason why medical experts should not do the same. The Bolam Principle
Ever since 1957when the principle was stated by Mr Justice McNair, it has been the basis for deciding if a doctor has breached his duty of care. He said, 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper, by a responsible body of medical men skilled in that particular art (Bolam v Friern HMC [1957] 2All ER 118; 1 WLR582). In other words it has always been accepted by the Courts, and understood by the profession, that a doctor's actions will be judged by other doctors, not by lawyers. It is usual to obtain the opinion of other doctors in the same discipline as to whether he has acted in accordance with the practice of a responsible body of doctors at the time the alleged breach of duty occurred. The Bolam test is amplified as follows: 'In the realm of diagnosis of treatment, there is ample scope for difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill and knowledge than others would have shown. The true test for establishing negligence is whether he has been proved guilty of such failure, as no doctor of ordinary skill would be guilty of acting with ordinary care;' (Hunter v Hanley [1955]SLTI13; 1955 SC200). My experience in trauma and orthopaedic negligence claims for which I receive instructions in over 300 cases a year, leads me to believe that the Bolam test strongly favours the Defence. It may well have been appropriate when medicine and particularly surgery was much less complex and sophisticated than it is today. There is good evidence from experienced medical experts that deserving Plaintiffs lose their claims - not so much on the facts and their interpretation, but because unfortunately there is a minority of expert witnesses who are willing to say that they would support the doctors action and that what was done is accepted practice. Enquiry will often indicate that the expert's evidence is not supported by his own clinical practice; nevertheless his evidence is generally accepted by the court without question. In the Sidaway case (Sidaway v Bethlem Royal Hospital [1985] 1All ER643, HL) which was concerned with informed consent, the matter went to the House of Lords and in the course of their judgement the word 'rightly' was inserted into the Bolam principle before 'accepted as proper' (see above). Clearly courts have the power to over-rule responsible expert medical opinion. I suspect it is a power that would be rarely used and then only in extreme cases. Few would disagree that Bolam works to the disadvantage of the Plaintiff. The question arises therefore, as to whether there are any additional safeguards which, while retaining the principle, would redress the balance towards the Plaintiff.
Medical Negligence Litigation
207
A possible solution is that during the pre-trial exchange of medical reports, the Defence expert should be required to give evidence from his own practice in support of his opinion. If he fails to do so, then a judge would take this into account when assessing how much reliance should be placed on the evidence. The only alternative seems to me to be for the courts to use their powers more frequently to over-rule a defence expert opinion in the light of evidence or lack of it, suggesting that it may be unwise to rely on it. lt is to be hoped that these defects in the system of Medical Negligence Litigation (and I appreciate that there are others) will be discussed by the appropriate bodies. No doubt my proposals are controversial but if they are to succeed in stimulating debate leading to reform then they will have served their purpose.
205
MEDICAL NEGLIGENCE LITIGATION: THE NEED FOR REFORM by Nigel Harris FRCS In recent years there has been a number of welcome reforms in the conduct of medical negligence litigation. Pre-trial exchange of medical reports on liability as part of a 'cards on the table' approach, and the meeting of the two sides' medical experts (which surely ought to be a statutory requirement) has to some extent redressed the balance which has always significantly favoured the Defence; however, there is still some way to go before it can be said that the Plaintiff is not at a disadvantage. I suggest that there are certainly two areas which should receive consideration for reform of the present system. The non-legally aided Plaintiff
I have been instructed in a number of cases in which the Plaintiff is of humble means but does not qualify for legal aid. In a recent case, the medical evidence concerning a very serious elbow injury was that of a 67 year old Plaintiff who had a very good chance of succeeding at trial, and £20,000-£30,000 compensation could be anticipated. However, as always in these cases, the Defence was aware that she was not legally aided. They took advantage of this fact, which of course they are fully entitled to do, and a few days before the trial made a derisory offer of £3,000 as a 'nuisance' payment. Counsel advised acceptance because the risk of going to trial and losing was that her home would have to be sold. Under the circumstances the Plaintiff had little choice in the matter. This is not an isolated case, and it cannot be right that a Plaintiff's chance for compensation should in any way be influenced by such financial considerations. A further consequence of avoiding a trial and hearing the evidence is that the medical staff concerned receive no indication that their actions were possibly responsible for the Plaintiff's condition, and the same mistakes are likely to recur. Notwithstanding the obvious need to control strictly the means by which legal aid is obtained, there is nevertheless, a large group of persons who are unlikely to receive justice under the existing system. These cases clearly offer support for the protagonists of a no-fault compensation scheme. However, there are many disadvantages but it is not the purpose of this article to discuss them. It seems to me that a significant improvement to the existing system would result from a limited form of contingency fee arrangement for these difficult cases in which lawyers and Plaintiffs have to grapple with the question of the financial consequences rather than simply advising on the merit of the claim. The Plaintiff in the case I have quoted did not have to decide if she could afford to have her elbow treated at the time of injury. I do not expect her and others in a similar position to be asked to take the risk of losing their home in order to pursue their reasonable claim.
206
M edico- LegalJournal60/3
I am quite certain that if she had lived in the United States the case would have gone to trial without financial risk. I hope therefore that lawyers will give further consideration to introducing contingency fee arrangements in selected cases, and there is of course no reason why medical experts should not do the same. The Bolam Principle
Ever since 1957when the principle was stated by Mr Justice McNair, it has been the basis for deciding if a doctor has breached his duty of care. He said, 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper, by a responsible body of medical men skilled in that particular art (Bolam v Friern HMC [1957] 2All ER 118; 1 WLR582). In other words it has always been accepted by the Courts, and understood by the profession, that a doctor's actions will be judged by other doctors, not by lawyers. It is usual to obtain the opinion of other doctors in the same discipline as to whether he has acted in accordance with the practice of a responsible body of doctors at the time the alleged breach of duty occurred. The Bolam test is amplified as follows: 'In the realm of diagnosis of treatment, there is ample scope for difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill and knowledge than others would have shown. The true test for establishing negligence is whether he has been proved guilty of such failure, as no doctor of ordinary skill would be guilty of acting with ordinary care;' (Hunter v Hanley [1955]SLTI13; 1955 SC200). My experience in trauma and orthopaedic negligence claims for which I receive instructions in over 300 cases a year, leads me to believe that the Bolam test strongly favours the Defence. It may well have been appropriate when medicine and particularly surgery was much less complex and sophisticated than it is today. There is good evidence from experienced medical experts that deserving Plaintiffs lose their claims - not so much on the facts and their interpretation, but because unfortunately there is a minority of expert witnesses who are willing to say that they would support the doctors action and that what was done is accepted practice. Enquiry will often indicate that the expert's evidence is not supported by his own clinical practice; nevertheless his evidence is generally accepted by the court without question. In the Sidaway case (Sidaway v Bethlem Royal Hospital [1985] 1All ER643, HL) which was concerned with informed consent, the matter went to the House of Lords and in the course of their judgement the word 'rightly' was inserted into the Bolam principle before 'accepted as proper' (see above). Clearly courts have the power to over-rule responsible expert medical opinion. I suspect it is a power that would be rarely used and then only in extreme cases. Few would disagree that Bolam works to the disadvantage of the Plaintiff. The question arises therefore, as to whether there are any additional safeguards which, while retaining the principle, would redress the balance towards the Plaintiff.
Medical Negligence Litigation
207
A possible solution is that during the pre-trial exchange of medical reports, the Defence expert should be required to give evidence from his own practice in support of his opinion. If he fails to do so, then a judge would take this into account when assessing how much reliance should be placed on the evidence. The only alternative seems to me to be for the courts to use their powers more frequently to over-rule a defence expert opinion in the light of evidence or lack of it, suggesting that it may be unwise to rely on it. lt is to be hoped that these defects in the system of Medical Negligence Litigation (and I appreciate that there are others) will be discussed by the appropriate bodies. No doubt my proposals are controversial but if they are to succeed in stimulating debate leading to reform then they will have served their purpose.
