MEDICOLEGAL COLUMN
Should medicolegal medicine be part of the medical school curriculum? John W Norris,1 Colin J Mumford2 1
Department of Clinical Neurosciences, St George’s Medical School, London, UK 2 Department of Clinical Neurosciences, Western General Hospital, Edinburgh, UK Correspondence to Professor John W Norris, Department of Clinical Neurosciences, St George’s Medical School, London SW17 0RE, UK; [email protected] Accepted 14 December 2014 Published Online First 24 January 2015
To cite: Norris JW, Mumford CJ. Pract Neurol 2015;15:131–134.
INTRODUCTION Physicians, in general, know nothing about the law when they qualify, and lawyers rarely ever know anything about medicine as it relates to the law. The two professions are uneasy bedfellows, yet not infrequently meet in settings favourable to lawyers but not to physicians. This is especially true in law courts, where physicians may be intimidated by unfamiliar and often grandiose surroundings, such as the Royal Courts of Justice in London (figure 1). Moreover, there is an increasing tendency for dissatisfied patients to launch legal actions against doctors, sometimes encouraged to do so by ‘ambulance chasing’ firms of lawyers, and supported financially by questionable allocation of legal aid funding. This may apply especially to neurology, where inevitable diagnostic uncertainty and frequent lack of effective treatments, may be interpreted as inadequate, or substandard care by anxious patients and their relatives. THE NATURE OF THE PROBLEM Increasing litigation does not necessarily indicate falling standards, but claims to the National Health Service (NHS) litigation authority in England and Wales rose from 5426 in 2006 to 8665 in 2010, an increase of 60% in just 4 years, and undoubtedly are still rising. Healthcare consumed just 4.6% of the UK’s Gross Domestic Product in 1950 compared to nearly 10% in 2009.1 Within that budget, the NHS Litigation Authority (NHSLA) consumed a staggering proportion: as of 31 March 2014 the NHSLA estimated its potential liabilities at £26.1 billion, of which £25.7 billion related to clinical negligence claims.2 So despite increasing expenditure, have standards of care fallen? Have public expectations risen? Or could there be a new awareness of a ‘pot of gold at the end of the rainbow’ for lawyers as well as for
patients who litigate against their medical practitioners? There are now new and effective drugs available for many disorders previously considered incurable, such as acute stroke and multiple sclerosis, so patients expect more from their doctors. Coupled with this there is an expanding population with a more dynamic elderly component who no longer accept illness as the inevitable effect of ageing. Both the public and the legal profession are becoming increasingly aware not only of the advances in all branches of medicine, but also are increasingly knowledgeable regarding when and where the unfortunate physician being sued is perceived to have gone wrong. Many doctors once considered producing medicolegal reports that addressed such issues to be a stress-free and rewarding part of retirement; they were rarely questioned regarding their written opinions on a case, and even less frequently required to justify their opinion under detailed challenge in court. However, this comfortable position has now gone, and the new world of medicolegal medicine is no place for the amateur. It is not unusual now to find that a solicitor or barrister specialising in medical matters may be embarrassingly better informed than the retired practitioner offering a clearlyoutdated opinion on a case. A recently published review article in this journal presented the problems and pitfalls that a neurologist may encounter when attempting to bridge the uncomfortable gap between the two very different professions of medicine and the law.3 KEEPING UP TO DATE Major past advances in surgical techniques, medical treatments and basic concepts that were accepted just a decade ago may now be obsolete, inappropriate or even dangerous. So there is a risk that a confident, but out-of-date specialist
Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
131
MEDICOLEGAL COLUMN listen to a debate between the doctors. Many barristers and judges have found this to be a positive development and indeed medical experts have also taken a favourable view, in that they can respond immediately to points made by colleagues with which they disagree. However, a medical practitioner not expecting this process in court may be seriously wrong-footed when asked to participate. CREDIBILITY GAPS BETWEEN LAW AND MEDICINE There are basic credibility gaps between the medical and legal professions that highlight the very different nature of the two professions. The 50% probability rule
Figure 1 The formal environment of a courtroom may be daunting.
may be unpleasantly surprised in court when crossexamined by a barrister with a sound and contemporary understanding of key medical data. The physician may then be embarrassingly out-manoeuvred. Doctors may also be caught out by changes in medicolegal procedure. For example, a new procedure entered English legal practice, following a similar innovation in the USA. Instead of giving their evidence in sequence, medical expert witnesses are brought into the witness box simultaneously. They are sworn in together, and may be questioned by barristers and by the judge as a group, in essence allowing the legal professionals to
Figure 2
132
Although in general lawyers accept medical diagnoses made by the professional, there are long cherished concepts in medicolegal cases unknown to physicians but which must nevertheless be understood by a would-be medical expert witness. A particular favourite is the lawyers’ use of the term ‘the balance of probability’ when deciding the outcome of a case, be it a personal injury case, or in determining whether an alleged error made by a doctor was responsible for a bad outcome in a given case. Is something ‘more likely than not’? For example, a lawyer might ask, ‘If she had had the drug in time, would there have been a 51% probability of survival over five years?’ The answer to this depends on the clinical scenario. For example, consider the case of a new wonder drug given for a disorder where death is almost certain over 5 years, perhaps glioblastoma multiforme. The long-term survival of even one or two patients in a hundred would be miraculous even with the wonder drug, and so if that were the diagnosis, the answer to
Medicolegal teaching should be included within the undergraduate clinical curriculum. Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
MEDICOLEGAL COLUMN the question would be, ‘No’, since it is not more than 50% likely that earlier administration of a drug would have altered the outcome. Insane and non-insane automatism
These are legal terms—often heard in English law— that may seem very foreign, even to a medical practitioner experienced in the field. ‘Insane automatism’ is pleaded when an individual accused of a criminal act was mentally disturbed at the moment when committing the crime, for example a patient with active paranoid schizophrenia. ‘Non-insane automatism’ is a defence encountered when an accused person acts as a result of physical factors over which he had no control; for example a patient with diabetes suffering with insulin-induced hypoglycaemia at the time of a criminal act, or an individual with post-epileptic subconscious behaviour. The defence of ‘non-insane automatism’ was, perhaps remarkably, successful in a case of murder that occurred in Toronto, Canada, during 1993. In this case, the defendant woke in the night, got completely dressed, drove his car to another house, shot the sleeping victim, and then returned home. The court accepted that the perpetrator was sleepwalking at the time, that is, this was ‘non-insane automatism’.4 The over-riding duty to the court
Doctors receive instructions to write medicolegal reports from solicitors usually acting for one side or the other in a case. However, medical practitioners must keep in mind that they are not being engaged to create a medical report that is in support of one side or the other. They should give their professional view on a case whether or not that view is what the instructing lawyer’s client wishes to hear. In advance of a legal case being formally brought, it is reasonable and proper to offer a medical opinion for the benefit of a legal firm, which outlines the strengths or weaknesses of their potential case. However, once a case has started, doctors must remain strictly neutral at all times, and should simply offer their professional medical opinion. Medical experts are there to ‘assist the court’—specifically to assist the judge in matters medical—and should resist any urge to shape their evidence in favour of the legal firm who may be paying their fees. WRITING A MEDICOLEGAL REPORT Success in medicolegal work depends on the accuracy, fluency and relevance of the final medicolegal report, and how understandable it is to the legal professionals, whether lawyer, barrister or judge. Glossaries may be needed, with explanation of medical terms at various points in the document. It is critical to write only within your own area of expertise and not to stray into the territories of other specialties, except in very rare circumstances. Hospital-based specialists should not, for example, pass comment on work Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
performed by general practitioners. Sometimes commenting on other clinical areas may be acceptable and appropriate; for example where there is overlap between different but related specialties, such as psychology and neurology, or orthopaedics and rehabilitation. However, even there, commenting on the areas of other medical specialists should be performed with extreme care. Recently a psychiatrist offering evidence in a medicolegal case was suspended from clinical practice for predicting that a patient with post-traumatic stress disorder was ‘wholly impaired in their professional practice for an indefinite period’. The UK General Medical Council disagreed profoundly with this opinion, and determined that this expert witness had given evidence that was ‘acting beyond his competence.’ The ensuing suspension was, perhaps fortunately, only temporary. FEES FOR MEDICOLEGAL WORK There are no published guidelines for fees for medicolegal work. Medical experts should determine these ideally by comparison with colleagues. In some of the larger medicolegal conferences, data on charges are collected from all attendees and subsequently published. This information can be invaluable in assisting a new medicolegal expert to decide on an appropriate fee structure. It is good policy to advise any legal instructing party of the likely fees before doing any work. Some lawyers may request a ‘delayed fee structure’, in other words, agreement that the fees will not be paid until the conclusion of the case. Medical experts should note that this point might often be some years in the future! Note also that fees for criminal cases are inevitably much lower, and medical experts must be prepared to offer a lower scale of fees for this type of work. INCLUDING MEDICOLEGAL LEARNING WITHIN THE MEDICAL CURRICULUM At present a medical school graduate with a very sound basic grounding in medicine may well have no training whatsoever in how to approach medicolegal cases, how to relate to lawyers and how to ‘speak their language’. We believe that the basic medicolegal concepts presented above, and training in how alleged medical errors are analysed and evaluated by the legal profession, should be taught at medical school. Most doctors will need of some of this information in the first decade after their qualification. For some young doctors, undergraduate medicolegal training might form the future basis of a major, or even a sole, career path, having acquired sufficient experience. Clearly this would need more than one teaching session: perhaps medical schools should introduce a short course, ideally during the clinical years, comprising four to six sessions, delivered by solicitors, barristers and medical consultants with expertise in the field of medicolegal work (figure 2). There would be several advantages: physicians inexperienced in legal
133
MEDICOLEGAL COLUMN procedures would be better placed to deal with any enquiries from lawyers, and they would understand issues that might arise if their own work were to be questioned or criticised. Also, an understanding of legal decision-making in determining issues of medical negligence might, in itself, reduce the risk that otherwise appropriately trained junior doctors may fall victim to allegations of medical negligence. Competing interests None. Provenance and peer review Commissioned; externally peer reviewed. This paper was reviewed by Paul Jarman, London, UK.
134
REFERENCES 1 Nisselle P. Rising litigation does not mean falling standards. BMJ 2012;26:345. 2 NHS Litigation Authority: Factsheet 2—financial information 2013–2014. http://www.nhsla.com/Pages/Publications.aspx? library=currentactivity%7cfactsheets%7cfactsheet2financial information 3 Mumford CJ. When worlds collide: the uncomfortable romance between law and neurology. Pract Neurol 2013;13:4–12. 4 Broughton R, Billings R, Cartwright R, et al. Homicidal somnambulism: a case report. Sleep 1994;17:253–64.
Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
Should medicolegal medicine be part of the medical school curriculum? John W Norris,1 Colin J Mumford2 1
Department of Clinical Neurosciences, St George’s Medical School, London, UK 2 Department of Clinical Neurosciences, Western General Hospital, Edinburgh, UK Correspondence to Professor John W Norris, Department of Clinical Neurosciences, St George’s Medical School, London SW17 0RE, UK; [email protected] Accepted 14 December 2014 Published Online First 24 January 2015
To cite: Norris JW, Mumford CJ. Pract Neurol 2015;15:131–134.
INTRODUCTION Physicians, in general, know nothing about the law when they qualify, and lawyers rarely ever know anything about medicine as it relates to the law. The two professions are uneasy bedfellows, yet not infrequently meet in settings favourable to lawyers but not to physicians. This is especially true in law courts, where physicians may be intimidated by unfamiliar and often grandiose surroundings, such as the Royal Courts of Justice in London (figure 1). Moreover, there is an increasing tendency for dissatisfied patients to launch legal actions against doctors, sometimes encouraged to do so by ‘ambulance chasing’ firms of lawyers, and supported financially by questionable allocation of legal aid funding. This may apply especially to neurology, where inevitable diagnostic uncertainty and frequent lack of effective treatments, may be interpreted as inadequate, or substandard care by anxious patients and their relatives. THE NATURE OF THE PROBLEM Increasing litigation does not necessarily indicate falling standards, but claims to the National Health Service (NHS) litigation authority in England and Wales rose from 5426 in 2006 to 8665 in 2010, an increase of 60% in just 4 years, and undoubtedly are still rising. Healthcare consumed just 4.6% of the UK’s Gross Domestic Product in 1950 compared to nearly 10% in 2009.1 Within that budget, the NHS Litigation Authority (NHSLA) consumed a staggering proportion: as of 31 March 2014 the NHSLA estimated its potential liabilities at £26.1 billion, of which £25.7 billion related to clinical negligence claims.2 So despite increasing expenditure, have standards of care fallen? Have public expectations risen? Or could there be a new awareness of a ‘pot of gold at the end of the rainbow’ for lawyers as well as for
patients who litigate against their medical practitioners? There are now new and effective drugs available for many disorders previously considered incurable, such as acute stroke and multiple sclerosis, so patients expect more from their doctors. Coupled with this there is an expanding population with a more dynamic elderly component who no longer accept illness as the inevitable effect of ageing. Both the public and the legal profession are becoming increasingly aware not only of the advances in all branches of medicine, but also are increasingly knowledgeable regarding when and where the unfortunate physician being sued is perceived to have gone wrong. Many doctors once considered producing medicolegal reports that addressed such issues to be a stress-free and rewarding part of retirement; they were rarely questioned regarding their written opinions on a case, and even less frequently required to justify their opinion under detailed challenge in court. However, this comfortable position has now gone, and the new world of medicolegal medicine is no place for the amateur. It is not unusual now to find that a solicitor or barrister specialising in medical matters may be embarrassingly better informed than the retired practitioner offering a clearlyoutdated opinion on a case. A recently published review article in this journal presented the problems and pitfalls that a neurologist may encounter when attempting to bridge the uncomfortable gap between the two very different professions of medicine and the law.3 KEEPING UP TO DATE Major past advances in surgical techniques, medical treatments and basic concepts that were accepted just a decade ago may now be obsolete, inappropriate or even dangerous. So there is a risk that a confident, but out-of-date specialist
Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
131
MEDICOLEGAL COLUMN listen to a debate between the doctors. Many barristers and judges have found this to be a positive development and indeed medical experts have also taken a favourable view, in that they can respond immediately to points made by colleagues with which they disagree. However, a medical practitioner not expecting this process in court may be seriously wrong-footed when asked to participate. CREDIBILITY GAPS BETWEEN LAW AND MEDICINE There are basic credibility gaps between the medical and legal professions that highlight the very different nature of the two professions. The 50% probability rule
Figure 1 The formal environment of a courtroom may be daunting.
may be unpleasantly surprised in court when crossexamined by a barrister with a sound and contemporary understanding of key medical data. The physician may then be embarrassingly out-manoeuvred. Doctors may also be caught out by changes in medicolegal procedure. For example, a new procedure entered English legal practice, following a similar innovation in the USA. Instead of giving their evidence in sequence, medical expert witnesses are brought into the witness box simultaneously. They are sworn in together, and may be questioned by barristers and by the judge as a group, in essence allowing the legal professionals to
Figure 2
132
Although in general lawyers accept medical diagnoses made by the professional, there are long cherished concepts in medicolegal cases unknown to physicians but which must nevertheless be understood by a would-be medical expert witness. A particular favourite is the lawyers’ use of the term ‘the balance of probability’ when deciding the outcome of a case, be it a personal injury case, or in determining whether an alleged error made by a doctor was responsible for a bad outcome in a given case. Is something ‘more likely than not’? For example, a lawyer might ask, ‘If she had had the drug in time, would there have been a 51% probability of survival over five years?’ The answer to this depends on the clinical scenario. For example, consider the case of a new wonder drug given for a disorder where death is almost certain over 5 years, perhaps glioblastoma multiforme. The long-term survival of even one or two patients in a hundred would be miraculous even with the wonder drug, and so if that were the diagnosis, the answer to
Medicolegal teaching should be included within the undergraduate clinical curriculum. Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
MEDICOLEGAL COLUMN the question would be, ‘No’, since it is not more than 50% likely that earlier administration of a drug would have altered the outcome. Insane and non-insane automatism
These are legal terms—often heard in English law— that may seem very foreign, even to a medical practitioner experienced in the field. ‘Insane automatism’ is pleaded when an individual accused of a criminal act was mentally disturbed at the moment when committing the crime, for example a patient with active paranoid schizophrenia. ‘Non-insane automatism’ is a defence encountered when an accused person acts as a result of physical factors over which he had no control; for example a patient with diabetes suffering with insulin-induced hypoglycaemia at the time of a criminal act, or an individual with post-epileptic subconscious behaviour. The defence of ‘non-insane automatism’ was, perhaps remarkably, successful in a case of murder that occurred in Toronto, Canada, during 1993. In this case, the defendant woke in the night, got completely dressed, drove his car to another house, shot the sleeping victim, and then returned home. The court accepted that the perpetrator was sleepwalking at the time, that is, this was ‘non-insane automatism’.4 The over-riding duty to the court
Doctors receive instructions to write medicolegal reports from solicitors usually acting for one side or the other in a case. However, medical practitioners must keep in mind that they are not being engaged to create a medical report that is in support of one side or the other. They should give their professional view on a case whether or not that view is what the instructing lawyer’s client wishes to hear. In advance of a legal case being formally brought, it is reasonable and proper to offer a medical opinion for the benefit of a legal firm, which outlines the strengths or weaknesses of their potential case. However, once a case has started, doctors must remain strictly neutral at all times, and should simply offer their professional medical opinion. Medical experts are there to ‘assist the court’—specifically to assist the judge in matters medical—and should resist any urge to shape their evidence in favour of the legal firm who may be paying their fees. WRITING A MEDICOLEGAL REPORT Success in medicolegal work depends on the accuracy, fluency and relevance of the final medicolegal report, and how understandable it is to the legal professionals, whether lawyer, barrister or judge. Glossaries may be needed, with explanation of medical terms at various points in the document. It is critical to write only within your own area of expertise and not to stray into the territories of other specialties, except in very rare circumstances. Hospital-based specialists should not, for example, pass comment on work Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
performed by general practitioners. Sometimes commenting on other clinical areas may be acceptable and appropriate; for example where there is overlap between different but related specialties, such as psychology and neurology, or orthopaedics and rehabilitation. However, even there, commenting on the areas of other medical specialists should be performed with extreme care. Recently a psychiatrist offering evidence in a medicolegal case was suspended from clinical practice for predicting that a patient with post-traumatic stress disorder was ‘wholly impaired in their professional practice for an indefinite period’. The UK General Medical Council disagreed profoundly with this opinion, and determined that this expert witness had given evidence that was ‘acting beyond his competence.’ The ensuing suspension was, perhaps fortunately, only temporary. FEES FOR MEDICOLEGAL WORK There are no published guidelines for fees for medicolegal work. Medical experts should determine these ideally by comparison with colleagues. In some of the larger medicolegal conferences, data on charges are collected from all attendees and subsequently published. This information can be invaluable in assisting a new medicolegal expert to decide on an appropriate fee structure. It is good policy to advise any legal instructing party of the likely fees before doing any work. Some lawyers may request a ‘delayed fee structure’, in other words, agreement that the fees will not be paid until the conclusion of the case. Medical experts should note that this point might often be some years in the future! Note also that fees for criminal cases are inevitably much lower, and medical experts must be prepared to offer a lower scale of fees for this type of work. INCLUDING MEDICOLEGAL LEARNING WITHIN THE MEDICAL CURRICULUM At present a medical school graduate with a very sound basic grounding in medicine may well have no training whatsoever in how to approach medicolegal cases, how to relate to lawyers and how to ‘speak their language’. We believe that the basic medicolegal concepts presented above, and training in how alleged medical errors are analysed and evaluated by the legal profession, should be taught at medical school. Most doctors will need of some of this information in the first decade after their qualification. For some young doctors, undergraduate medicolegal training might form the future basis of a major, or even a sole, career path, having acquired sufficient experience. Clearly this would need more than one teaching session: perhaps medical schools should introduce a short course, ideally during the clinical years, comprising four to six sessions, delivered by solicitors, barristers and medical consultants with expertise in the field of medicolegal work (figure 2). There would be several advantages: physicians inexperienced in legal
133
MEDICOLEGAL COLUMN procedures would be better placed to deal with any enquiries from lawyers, and they would understand issues that might arise if their own work were to be questioned or criticised. Also, an understanding of legal decision-making in determining issues of medical negligence might, in itself, reduce the risk that otherwise appropriately trained junior doctors may fall victim to allegations of medical negligence. Competing interests None. Provenance and peer review Commissioned; externally peer reviewed. This paper was reviewed by Paul Jarman, London, UK.
134
REFERENCES 1 Nisselle P. Rising litigation does not mean falling standards. BMJ 2012;26:345. 2 NHS Litigation Authority: Factsheet 2—financial information 2013–2014. http://www.nhsla.com/Pages/Publications.aspx? library=currentactivity%7cfactsheets%7cfactsheet2financial information 3 Mumford CJ. When worlds collide: the uncomfortable romance between law and neurology. Pract Neurol 2013;13:4–12. 4 Broughton R, Billings R, Cartwright R, et al. Homicidal somnambulism: a case report. Sleep 1994;17:253–64.
Norris JW, et al. Pract Neurol 2015;15:131–134. doi:10.1136/practneurol-2014-000985
