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Medical negligence yesterday and today
Current Anaesthesia and Critical Care (1998) 9, 228-231
© 1998 Harcourt Brace & Co. Ltd
Focus on: Medico-legal issues in anaesthesia - part I
Medical negligence yesterday and today
M. A. Branthwaite
The review explores developments in medical litigation over the last 50 years. Most notable have been erosion o f the independent contractor status o f hospital-based practitioners, transfer o f financial responsibility for claims to autonomous Trusts, creation of the NHS Litigation Authority and Clinical Negligence Scheme for Trusts and, most recently, introduction o f a pre-action protocol and opportunity for early offers to settle as a means of avoiding litigation. Implications of a professional duty of disclosure are explored and considered against the background o f a continuing desire for professional self-regulation.
Historical perspective
Annual expenditure had risen to £125 M by 1995 and in 1996 Lord Woolf referred to 20 000 outstanding claims against the NHS, about 2500 of which had a value in excess of £100 000. 4
Nature and incidence of medical litigation Negligence in English law, is a civil wrong or tort established by proving that foreseeable harm has occurred as a result of a breach in the duty of care. Actions in negligence were brought with increasing frequency after the enunciation of the general principle of the duty of care by Lord Atkin in 1932,1 but claims alleging medical malpractice were rare before the introduction of the NHS in 1948. Since then, the availability of Legal Aid to assist those unable to finance legal action privately, the extension of Legal Aid to children in their own name, and the success of the charitable organization Action for Victims of Medical Accidents have all contributed to the rising number. Precise statistics for number of claims, the proportion which settle and the value of damages awarded are difficult to determine, but the Medical Defence Union reported that the number and value of claims doubled between 1985 and 1988. z Fenn et al estimated the cost to the NHS in England during 1990-1991 as being £52.3 M, with a mean cost per claim, including legal costs for both sides, of £27 242. Actual expenditure for that year was £53.2 M in settlements for 1618 claims.
Role of the medical practitioner Doctors fought hard to retain their status as independent contractors when the NHS was created in 1948. One consequence was that legal liability for negligent clinical management remained with the practitioner in person who was, therefore, cited as a defendant, either alone or as a co-defendant with the hospital. During the 1980s, the rising incidence and value of successful claims led to a rapid increase in subscriptions to defence organizations which then became a source of dispute in pay negotiations. This conflict was resolved in 1990 with the advent of Crown Indemnity which provides financial protection to hospital practitioners for claims arising from their NHS work. Now doctors are no longer cited as a Defendant, their defence organization takes little or no part in handling the claim, and litigation management rests firmly in the hands of the employing authority. Without the involvement of a defence organization, practitioners felt their interests and reputations were being ignored and that claims were being settled on the basis of economic expediency rather than scientific exploration.
Dr M. A. Branthwaile, One Paper Buildings, Temple, London EC4Y 7EP, UK.
228
MEDICAL NEGLIGENCE YESTERDAY AND TODAY
NHS reorganization and the creation of Trusts" Shortly after the advent of Crown Indemnity, NHS reorganization led to the establishment of Trusts which were financially autonomous and so carried responsibility for the entire cost of legal claims. Claims valued at less than 0,5% of annual revenue were to be settled by the Trust, with larger sums under-written by a 10-year, repayable, Treasury loan. Even a single large award (e.g, £1 M) could create dire financial consequences. Another and more subtle disadvantage lay in procedures for claims handling. Each Trust had authority to instruct solicitors of its choosing and, as medical practitioners were now covered by Crown Indemnity and Medical Defence Organizations were no longer directly involved, their experience and associated legal expertise were lost to the hospital service,
Clinical Negligence Scheme for Trusts This scheme came into operation in April 1995 as a means of pooling the costs of successful claims against the NHS. Membership is voluntary and subscribing Trusts pay an annual premium determined according to the efficacy of their risk-management strategies as judged by criteria laid down by the Clinical Negligence Scheme for Trusts (CNST) at its inception. The Existing Liabilities Scheme (ELS), which applies to incidents before April 1st 1995, has also been established; it is funded from the Doll and is available to any NHS organization, independent of membership of the CNST.
National Health Service Litigation Authority The National Health Service Litigation Authority (NHSLA) was set up in November 1995 as a special health authority responsible for the administration of both the CNST and ELS. Its terms of reference include not only a requirement to maximize resources available for patient care, but also a specific commitment to improve the quality of care and ensure that patients have access to appropriate remedies and recompense. The NHSLA also has a responsibility to ensure high standards of claims handling. It has recently issued guidance on best practice and restricted the handling of claims on behalf of Trusts to a designated panel of experienced solicitors. Claims against private practitioners, and general medical and dental practitioners are still handled by the defence organizations, whereas those against private hospitals are covered by independent insurance. Restriction of claims handling for legally-aided plaintiffs to designated firms of solicitors, who can show experience and knowledge of medical negligence, is anticipated in 1999. These developments are expected to weed out some of the most heinous examples of unwarranted pursuit of unsustainable actions or defence of the manifestly indefensible.
Substantive law Defining the duty of care There is usually a self-evident duty between any health
229
professional and a patient and only rarely do circumstances arise where the existence of a duty of care is subject to legal challenge. 5 Issues of causation and foreseeability of harm are largely factual and depend upon an analysis of expert evidence. 6'7 Expert opinion is also the basis at English law for defining the standard of care expected of a practitioner. The 'Bolam' test, as it has come to be known, dates from 1957 when it was held that a professional man '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' .8 This supremacy of medical opinion has been eroded by a recent decision of the House of Lords 9 in which it was held that conduct sanctioned by a body of professional opinion could still amount to negligence, if it could not be demonstrated to the sarisfaction of the judge that the opinion relied upon was reasonable or responsible. It remains to be seen whether English law will eventually follow other common-law jurisdictions where medical opinion can be rejected in favour of judicial determination. 1°
Role of the expert witness The pre-eminence of medical opinion in the deterruination of both liability and causation at English law has led to the risk, which undoubtedly materialises from time to time, that some experts will be influenced by commercial considerations or partisan interests and will report in terms which defy scientific scrutiny. H The overriding duty of the expert is to the court, 12 not to the party from whom instruction has been received. Moves to rely upon a single, court-appointed expert are resisted because of a widely-perceived anxiety that views will always be partisan, Concern has also been voiced that medical reports often fail to address non-clinical matters which are, nevertheless, relevant for legal purposes. 13 Training for experts is available through some of the Royal Colleges and commercially, ~4 and an Expert Witness Institute was set up in 1996, with Lord Woolf as its President, to support, encourage, educate, train and ultimately accredit expert witnesses. It is a moot point whether experts trained to perform well in the adversarial system are ideally equipped to offer impartial clinical comment. As a very minimum, however, medical practitioners instructed to prepare medico-legal reports require an understanding of basic legal principle.
Procedural change Evolution of the adversarial system English law is a strictly adversarial system, taught in the language of warfare. Each legal team - solicitor and counsel - seeks to secure the best possible outcome for the client and will present the case as advantageously as possible. Expert reports will only be disclosed if supportive and those which are not are quietly forgotten. Until recently, expert reports and the medical literature cited in them were not disclosed before the court hearing
230 CURRENTANAESTHESIAAND CRITICALCARE and so 'trial by ambush' was the norm. Early plaintiffs in medical negligence litigation faced other difficulties too. They were seriously handicapped by a profound reluctance on the part of hospitals and their legal advisers to release medical notes, by the restricting of such release solely to nominated experts and by the paucity of practitioners willing to undertake a critical review of management and report unfavourably on their peers if necessary. This bias has now disappeared. Voluntary disclosure of notes is usual or can be secured either by court order or pursuant to the Access to Medical Records Act 1990. Disclosure of notes before an inquest has been authorized is and so too has disclosure of the details of internal enquiry. 16'17Loss or destruction of records, even when innocent in its intent, will be construed adversely by the courtsJ s Statements by witnesses of fact are now exchanged simultaneously well before trial, followed by reciprocal exchange of expert evidence and literature. This 'cards on the table' approach has facilitated the resolution of claims without need for trial, as has increasing use of pre-trial experts' meetings, which are conducted without legal advisers present but with an agenda previously agreed on behalf of both parties. Settlement without trial is financially advantageous to the NHS because, even if successful, the Trust cannot recover costs from a legally-aided plaintiff and more than 90% of medical litigants are so aidedJ 9
The Woolf enquiry Lord Woolf was appointed by the Lord Chancellor in 1994 to review civil procedure in England and Wales with a view to improving access to justice and reducing the cost of litigation. His definitive report4 was published in July 1996. Medical litigation was singled out for particular criticism. The disproportion between costs and value is particularly excessive, unacceptable delay is more common, unmeritorious cases are often pursued and clear-cut claims defended for too long, the success rate is lower than for other personal-injury litigation, and finally, and perhaps most damningly, the suspicion between parties is more intense and the lack of cooperation frequently greater that in other areas of litigation. What an indictment of the caring professions!
Proposals for reform More than 300 reforms were proposed by Lord Woolf, including in particular the transfer of responsibility for case management from parties and their lawyers to the courts, an amalgamation of the procedures used in the County Courts and High Court and a 3-tier system of case management which provides a simplified, quicker and cost-limited procedure for claims of low value (up to £10 000). Commenting on the specific needs of medical litigations, Lord Woolf made several recommendations which include the following: a. Litigation should be regarded as a measure of last resort
b. The General Medical Council and other regulatory bodies should consider whether a rule of professional conduct is needed to clarify the responsibility of health care professionals to their patients when they discover an act or omission in which they may have been negligent c. Hospitals should adopt better methods for tracing former staff d. A pre-litigation protocol should be developed e. The use of alternative dispute resolution should be encouraged. He supported the use of jointly-instructed experts, while recognizing that this remains highly controversial in medical actions; favoured meetings of expert; and recommended the development of agreed schedules for calculating care costs in high-value claims. Finally, he endorsed the establishment of a multi-party group which would address the particular needs of medical litigants. Some of these proposals have already been introduced and others are imminent.
Clinical Disputes Forum This voluntary body, now seeking charitable status, is composed of patient representatives, medical and nursing practitioners, the defence organizations, professional regulatory bodies, the NHSLA, the legal profession at all levels, the Lord Chancellor's Department and the Legal Aid Board. It seeks to explore specific issues affecting medical litigation and to make recommendations to relevant authorities. Its most important activity to date has been the development of a pre-action protocol specific to clinical disputes, which is expected to form part of a Practice Direction early in 1999.
The pre-action protocol A patient unable to obtain satisfaction by direct approach to Trust authorities will seek disclosure of hospital records and submit them to an expert to obtain an opinion on liability, z° If this report is supportive, the Plaintiff's solicitor will write a detailed letter before action to the Trust, setting out the basis for the claim and the main allegations of negligence, An offer to settle for a designated sum may be made at this stage. The Trust will reply within 3 months, either admitting some, or all, of the claim or refuting it, with reasons given for doing so. A response to an offer of settlement can be made at the same time. An essential prerequisite for adherence to this timescale is that Trusts should have in place systems of incident reporting and early evaluation of adverse incidents so that they are alerted to the possibility of a claim and have time to obtain evidence. Some plaintiff solicitors have already adopted the protocol informally and both the Legal Aid Board and the NHSLA are expected to require its adoption as a precondition for financial support. Similarly, it is anticipated that the courts will require compliance with it, cost penalties being proposed for transgression.
MEDICAL NEGLIGENCE YESTERDAY AND TODAY
Alternatives to litigation NHS complaints procedure Aggrieved patients or relatives do not necessarily have to resort to litigation to seek redress for a perceived wrong. The NHS complaints procedure, extensively revised in 1996, 21 provides for local and, if necessary, independent external expert investigation of grievances. Those still dissatisfied can request investigation by the Ombudsman who now has power to consider complaints founded on clinical management. However, even if criticism is upheld, there is no mechanism for providing financial compensation. The distinction between claims, which if successful secure damages, and complaints, which do not, is widely regarded as unrealistic but is likely to remain so for the foreseeable future.
Alternative dispute resolution This generic term refers to procedures other than litigation which can be employed to resolve civil disputes. Examples include independent expert determination, arbitration and mediation. Only mediation has been formally evaluated as a means of resolving medical claims. A pilot study22 has been completed and publication of its results is imminent. The principle is that both parties must be willing to participate in the mediation, must agree the nomination of a designated mediator and undertake to abide by any consensual agreement reached as a result of the mediation. There has been considerable reluctance on the part of both plaintiffs and defendants to proceed to mediation, but the majority of cases which have done so have settled. Unlike litigated solutions, parties can agree terms for resolution which include more than the mere payment of damages. Its future role in the resolution of medical disputes is unclear, but more claimants may be encouraged to adopt it by the recent decision of the Legal Aid Board to finance mediated settlement of all types of civil dispute.
Audit, attitude and professional self-regulation The medical professional has long been perceived as secretive and self-serving, a view reinforced recently by adverse publicity arising from the investigation of excess mortality in a paediatric cardiac surgical unit in Bristol. Claimants and their legal advisers anticipate obfuscation and prolonged denial of liability, even when claims are well-founded and clearly pleaded. Such policies will be defeated by the pre-action protocol which will require that Trusts be in a position to respond promptly to the letter before action. There must, therefore, be a willingness to investigate adverse incidents when they occur
231
and respond honestly and responsibly when approaches are made on behalf of aggrieved patients. Trust managers have been charged with a responsibility to maintain clinical excellence and have responded with a flurry of suspensions while clinical competence has been investigated. National bodies are being set up to define and monitor standards of clinical practice, 23and new guidance on professional standards has been issued by the General Medical Council. 24 It is now mandatory for practitioners to advise patients or, in all but exceptional circumstances, their nearest relative, particularly parents, when there has been an adverse incident attributable to deficiencies of management. The discharge of such a duty is bound to be difficult but the imposition of this obligation on medical practitioners does no more than bring them into line with other professions with codes of professional conduct which require disclosure of faulty practice. Medicine enjoys the privilege of self-regulation, but it may not do so for much longer unless professional attitudes change and public confidence can be regainedY
References 1. McAlister (or Donoghue) v Stevenson [1932] AC 562. 2. Hoyte P. Med L Rev 1995; 3: 53-73. 3. Fenn P, Hermans D, Dingwall R. Estimating the cost of compensating victims of medical negligence. Brit Med J 1994; 309: 389-391. 4. Lord Woolf. Access to justice. HMSO 1996; Section IV, para 10. 5. Powell v Boladz et al. [1998] 1 Lloyd's Rep Med_ 116-128. 6. Wilsher v Essex Area Health Authority [1988] AC 1074. 7. Hepworth v Kerr [1995] 6 Med LR. 139-171. 8. Bolam v Friern [1957] Hospital Management Committee 2 All ER 118. 9. Bolitho v City and Hackney Health Authority [1998] 1 Lloyd's Rep Med. 26-35. 10. Rogers v Whittaker [1993] 4 Med LR. 79-85_ 11. Lewis C J. The expert and the medical negligence action. Clinical Risk 1996; 2: 68-70. 12. National Justice Compania Naviera S A v Prudential Assurance Co 'The Ikarian Reefer' 2 Lloyds Rep 68 [1993]_ 13_ Comes P, Aitken R C B. Medical reports on persons claiming compensation for personal injury. J R Soc Med 1992; 85: 329-333. 14. Holborn CJ. Expert witnesses - are they born or made. Clinical Risk 1995; 1: 40-42. 15. Stobart v Nottingham Health Authority [1992] 3 Med L R, 284-290. 16. Lask v Gloucester Health Authority [1991] 2 Med L R. 379-383_ 17. Clough v Tameside & Glossop Health Authority [1998] 1 Lloyd's Rep Meal. 69-75, 18. Hammond v West Lancashire Health Authority [1998] 1 Lloyd's Rep Med. 146-149. 19. Lord Justice Otton. A three-stage scheme for medical negligence. J R Soc Med 1998; 91: 421-426. 20. The Protocol (1998). Clinical Risk Special Issue 1998; 4: 137-172. 21. The New Complaints Procedures for General Practice and NHS Hospitals. Journal of the MDU 1996; 12: 29-32. 22. Pilot study could cut medical negligence costs. Brit Med J 1995; 311: 770-771. 23. A First Class Service: quality in the new NHS. HMSO 1998; 24. Good Medical Practice. General Medial Council 1998; 25. Renegotiating medicine's contract with patients. Brit Med J 1998; 316: 1622-1623.
© 1998 Harcourt Brace & Co. Ltd
Focus on: Medico-legal issues in anaesthesia - part I
Medical negligence yesterday and today
M. A. Branthwaite
The review explores developments in medical litigation over the last 50 years. Most notable have been erosion o f the independent contractor status o f hospital-based practitioners, transfer o f financial responsibility for claims to autonomous Trusts, creation of the NHS Litigation Authority and Clinical Negligence Scheme for Trusts and, most recently, introduction o f a pre-action protocol and opportunity for early offers to settle as a means of avoiding litigation. Implications of a professional duty of disclosure are explored and considered against the background o f a continuing desire for professional self-regulation.
Historical perspective
Annual expenditure had risen to £125 M by 1995 and in 1996 Lord Woolf referred to 20 000 outstanding claims against the NHS, about 2500 of which had a value in excess of £100 000. 4
Nature and incidence of medical litigation Negligence in English law, is a civil wrong or tort established by proving that foreseeable harm has occurred as a result of a breach in the duty of care. Actions in negligence were brought with increasing frequency after the enunciation of the general principle of the duty of care by Lord Atkin in 1932,1 but claims alleging medical malpractice were rare before the introduction of the NHS in 1948. Since then, the availability of Legal Aid to assist those unable to finance legal action privately, the extension of Legal Aid to children in their own name, and the success of the charitable organization Action for Victims of Medical Accidents have all contributed to the rising number. Precise statistics for number of claims, the proportion which settle and the value of damages awarded are difficult to determine, but the Medical Defence Union reported that the number and value of claims doubled between 1985 and 1988. z Fenn et al estimated the cost to the NHS in England during 1990-1991 as being £52.3 M, with a mean cost per claim, including legal costs for both sides, of £27 242. Actual expenditure for that year was £53.2 M in settlements for 1618 claims.
Role of the medical practitioner Doctors fought hard to retain their status as independent contractors when the NHS was created in 1948. One consequence was that legal liability for negligent clinical management remained with the practitioner in person who was, therefore, cited as a defendant, either alone or as a co-defendant with the hospital. During the 1980s, the rising incidence and value of successful claims led to a rapid increase in subscriptions to defence organizations which then became a source of dispute in pay negotiations. This conflict was resolved in 1990 with the advent of Crown Indemnity which provides financial protection to hospital practitioners for claims arising from their NHS work. Now doctors are no longer cited as a Defendant, their defence organization takes little or no part in handling the claim, and litigation management rests firmly in the hands of the employing authority. Without the involvement of a defence organization, practitioners felt their interests and reputations were being ignored and that claims were being settled on the basis of economic expediency rather than scientific exploration.
Dr M. A. Branthwaile, One Paper Buildings, Temple, London EC4Y 7EP, UK.
228
MEDICAL NEGLIGENCE YESTERDAY AND TODAY
NHS reorganization and the creation of Trusts" Shortly after the advent of Crown Indemnity, NHS reorganization led to the establishment of Trusts which were financially autonomous and so carried responsibility for the entire cost of legal claims. Claims valued at less than 0,5% of annual revenue were to be settled by the Trust, with larger sums under-written by a 10-year, repayable, Treasury loan. Even a single large award (e.g, £1 M) could create dire financial consequences. Another and more subtle disadvantage lay in procedures for claims handling. Each Trust had authority to instruct solicitors of its choosing and, as medical practitioners were now covered by Crown Indemnity and Medical Defence Organizations were no longer directly involved, their experience and associated legal expertise were lost to the hospital service,
Clinical Negligence Scheme for Trusts This scheme came into operation in April 1995 as a means of pooling the costs of successful claims against the NHS. Membership is voluntary and subscribing Trusts pay an annual premium determined according to the efficacy of their risk-management strategies as judged by criteria laid down by the Clinical Negligence Scheme for Trusts (CNST) at its inception. The Existing Liabilities Scheme (ELS), which applies to incidents before April 1st 1995, has also been established; it is funded from the Doll and is available to any NHS organization, independent of membership of the CNST.
National Health Service Litigation Authority The National Health Service Litigation Authority (NHSLA) was set up in November 1995 as a special health authority responsible for the administration of both the CNST and ELS. Its terms of reference include not only a requirement to maximize resources available for patient care, but also a specific commitment to improve the quality of care and ensure that patients have access to appropriate remedies and recompense. The NHSLA also has a responsibility to ensure high standards of claims handling. It has recently issued guidance on best practice and restricted the handling of claims on behalf of Trusts to a designated panel of experienced solicitors. Claims against private practitioners, and general medical and dental practitioners are still handled by the defence organizations, whereas those against private hospitals are covered by independent insurance. Restriction of claims handling for legally-aided plaintiffs to designated firms of solicitors, who can show experience and knowledge of medical negligence, is anticipated in 1999. These developments are expected to weed out some of the most heinous examples of unwarranted pursuit of unsustainable actions or defence of the manifestly indefensible.
Substantive law Defining the duty of care There is usually a self-evident duty between any health
229
professional and a patient and only rarely do circumstances arise where the existence of a duty of care is subject to legal challenge. 5 Issues of causation and foreseeability of harm are largely factual and depend upon an analysis of expert evidence. 6'7 Expert opinion is also the basis at English law for defining the standard of care expected of a practitioner. The 'Bolam' test, as it has come to be known, dates from 1957 when it was held that a professional man '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' .8 This supremacy of medical opinion has been eroded by a recent decision of the House of Lords 9 in which it was held that conduct sanctioned by a body of professional opinion could still amount to negligence, if it could not be demonstrated to the sarisfaction of the judge that the opinion relied upon was reasonable or responsible. It remains to be seen whether English law will eventually follow other common-law jurisdictions where medical opinion can be rejected in favour of judicial determination. 1°
Role of the expert witness The pre-eminence of medical opinion in the deterruination of both liability and causation at English law has led to the risk, which undoubtedly materialises from time to time, that some experts will be influenced by commercial considerations or partisan interests and will report in terms which defy scientific scrutiny. H The overriding duty of the expert is to the court, 12 not to the party from whom instruction has been received. Moves to rely upon a single, court-appointed expert are resisted because of a widely-perceived anxiety that views will always be partisan, Concern has also been voiced that medical reports often fail to address non-clinical matters which are, nevertheless, relevant for legal purposes. 13 Training for experts is available through some of the Royal Colleges and commercially, ~4 and an Expert Witness Institute was set up in 1996, with Lord Woolf as its President, to support, encourage, educate, train and ultimately accredit expert witnesses. It is a moot point whether experts trained to perform well in the adversarial system are ideally equipped to offer impartial clinical comment. As a very minimum, however, medical practitioners instructed to prepare medico-legal reports require an understanding of basic legal principle.
Procedural change Evolution of the adversarial system English law is a strictly adversarial system, taught in the language of warfare. Each legal team - solicitor and counsel - seeks to secure the best possible outcome for the client and will present the case as advantageously as possible. Expert reports will only be disclosed if supportive and those which are not are quietly forgotten. Until recently, expert reports and the medical literature cited in them were not disclosed before the court hearing
230 CURRENTANAESTHESIAAND CRITICALCARE and so 'trial by ambush' was the norm. Early plaintiffs in medical negligence litigation faced other difficulties too. They were seriously handicapped by a profound reluctance on the part of hospitals and their legal advisers to release medical notes, by the restricting of such release solely to nominated experts and by the paucity of practitioners willing to undertake a critical review of management and report unfavourably on their peers if necessary. This bias has now disappeared. Voluntary disclosure of notes is usual or can be secured either by court order or pursuant to the Access to Medical Records Act 1990. Disclosure of notes before an inquest has been authorized is and so too has disclosure of the details of internal enquiry. 16'17Loss or destruction of records, even when innocent in its intent, will be construed adversely by the courtsJ s Statements by witnesses of fact are now exchanged simultaneously well before trial, followed by reciprocal exchange of expert evidence and literature. This 'cards on the table' approach has facilitated the resolution of claims without need for trial, as has increasing use of pre-trial experts' meetings, which are conducted without legal advisers present but with an agenda previously agreed on behalf of both parties. Settlement without trial is financially advantageous to the NHS because, even if successful, the Trust cannot recover costs from a legally-aided plaintiff and more than 90% of medical litigants are so aidedJ 9
The Woolf enquiry Lord Woolf was appointed by the Lord Chancellor in 1994 to review civil procedure in England and Wales with a view to improving access to justice and reducing the cost of litigation. His definitive report4 was published in July 1996. Medical litigation was singled out for particular criticism. The disproportion between costs and value is particularly excessive, unacceptable delay is more common, unmeritorious cases are often pursued and clear-cut claims defended for too long, the success rate is lower than for other personal-injury litigation, and finally, and perhaps most damningly, the suspicion between parties is more intense and the lack of cooperation frequently greater that in other areas of litigation. What an indictment of the caring professions!
Proposals for reform More than 300 reforms were proposed by Lord Woolf, including in particular the transfer of responsibility for case management from parties and their lawyers to the courts, an amalgamation of the procedures used in the County Courts and High Court and a 3-tier system of case management which provides a simplified, quicker and cost-limited procedure for claims of low value (up to £10 000). Commenting on the specific needs of medical litigations, Lord Woolf made several recommendations which include the following: a. Litigation should be regarded as a measure of last resort
b. The General Medical Council and other regulatory bodies should consider whether a rule of professional conduct is needed to clarify the responsibility of health care professionals to their patients when they discover an act or omission in which they may have been negligent c. Hospitals should adopt better methods for tracing former staff d. A pre-litigation protocol should be developed e. The use of alternative dispute resolution should be encouraged. He supported the use of jointly-instructed experts, while recognizing that this remains highly controversial in medical actions; favoured meetings of expert; and recommended the development of agreed schedules for calculating care costs in high-value claims. Finally, he endorsed the establishment of a multi-party group which would address the particular needs of medical litigants. Some of these proposals have already been introduced and others are imminent.
Clinical Disputes Forum This voluntary body, now seeking charitable status, is composed of patient representatives, medical and nursing practitioners, the defence organizations, professional regulatory bodies, the NHSLA, the legal profession at all levels, the Lord Chancellor's Department and the Legal Aid Board. It seeks to explore specific issues affecting medical litigation and to make recommendations to relevant authorities. Its most important activity to date has been the development of a pre-action protocol specific to clinical disputes, which is expected to form part of a Practice Direction early in 1999.
The pre-action protocol A patient unable to obtain satisfaction by direct approach to Trust authorities will seek disclosure of hospital records and submit them to an expert to obtain an opinion on liability, z° If this report is supportive, the Plaintiff's solicitor will write a detailed letter before action to the Trust, setting out the basis for the claim and the main allegations of negligence, An offer to settle for a designated sum may be made at this stage. The Trust will reply within 3 months, either admitting some, or all, of the claim or refuting it, with reasons given for doing so. A response to an offer of settlement can be made at the same time. An essential prerequisite for adherence to this timescale is that Trusts should have in place systems of incident reporting and early evaluation of adverse incidents so that they are alerted to the possibility of a claim and have time to obtain evidence. Some plaintiff solicitors have already adopted the protocol informally and both the Legal Aid Board and the NHSLA are expected to require its adoption as a precondition for financial support. Similarly, it is anticipated that the courts will require compliance with it, cost penalties being proposed for transgression.
MEDICAL NEGLIGENCE YESTERDAY AND TODAY
Alternatives to litigation NHS complaints procedure Aggrieved patients or relatives do not necessarily have to resort to litigation to seek redress for a perceived wrong. The NHS complaints procedure, extensively revised in 1996, 21 provides for local and, if necessary, independent external expert investigation of grievances. Those still dissatisfied can request investigation by the Ombudsman who now has power to consider complaints founded on clinical management. However, even if criticism is upheld, there is no mechanism for providing financial compensation. The distinction between claims, which if successful secure damages, and complaints, which do not, is widely regarded as unrealistic but is likely to remain so for the foreseeable future.
Alternative dispute resolution This generic term refers to procedures other than litigation which can be employed to resolve civil disputes. Examples include independent expert determination, arbitration and mediation. Only mediation has been formally evaluated as a means of resolving medical claims. A pilot study22 has been completed and publication of its results is imminent. The principle is that both parties must be willing to participate in the mediation, must agree the nomination of a designated mediator and undertake to abide by any consensual agreement reached as a result of the mediation. There has been considerable reluctance on the part of both plaintiffs and defendants to proceed to mediation, but the majority of cases which have done so have settled. Unlike litigated solutions, parties can agree terms for resolution which include more than the mere payment of damages. Its future role in the resolution of medical disputes is unclear, but more claimants may be encouraged to adopt it by the recent decision of the Legal Aid Board to finance mediated settlement of all types of civil dispute.
Audit, attitude and professional self-regulation The medical professional has long been perceived as secretive and self-serving, a view reinforced recently by adverse publicity arising from the investigation of excess mortality in a paediatric cardiac surgical unit in Bristol. Claimants and their legal advisers anticipate obfuscation and prolonged denial of liability, even when claims are well-founded and clearly pleaded. Such policies will be defeated by the pre-action protocol which will require that Trusts be in a position to respond promptly to the letter before action. There must, therefore, be a willingness to investigate adverse incidents when they occur
231
and respond honestly and responsibly when approaches are made on behalf of aggrieved patients. Trust managers have been charged with a responsibility to maintain clinical excellence and have responded with a flurry of suspensions while clinical competence has been investigated. National bodies are being set up to define and monitor standards of clinical practice, 23and new guidance on professional standards has been issued by the General Medical Council. 24 It is now mandatory for practitioners to advise patients or, in all but exceptional circumstances, their nearest relative, particularly parents, when there has been an adverse incident attributable to deficiencies of management. The discharge of such a duty is bound to be difficult but the imposition of this obligation on medical practitioners does no more than bring them into line with other professions with codes of professional conduct which require disclosure of faulty practice. Medicine enjoys the privilege of self-regulation, but it may not do so for much longer unless professional attitudes change and public confidence can be regainedY
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