Simplifying Personal Injury Litigation

1236 insurance. Opting out would be divisive. Everyone ought to contribute through taxes, but he would favour ideas for reducing insurance premiums. If, for example, patients chose not to enter an NHS hospital they should be able to obtain from the NHS half the cost of getting private treatment. This would bring down the cost of the health care insurance for a family of four from [10--12 a week to 5-6, which should be affordable for anyone on average earnings (£150 a week). Mr Byrne calculated that such a scheme could produce C1500 million in extra revenue and the 5 million now covered by private insurance could quickly jump to 20 million or about 40% of the population. Caution was also being urged by Tory backbenchers. Mr McCrindle said that the apparently fashionable idea of opting out was unrealistic. The private sector did not have the capacity. "There is a real prospect of creating a two standard health system which would be unacceptable to many people. The government is right to listen to all recommendations for change: it will be misguided if it sees opting out as a panacea for the NHS", he says. JOHN LEWIS

Medicine and Law Simplifying Personal Injury Litigation ON May 19, 1988, Citizen Action (a group founded in 1981 by Godfrey Bradman and Des Wilson) launched a campaign "to press for reform to enable citizens harmed by the actions or products of others to obtain fair and prompt compensation at a reasonable cost". The Citizen Action Compensation Campaign (CITCOM) was created in direct response to the ’Opren’ (benoxaprofen) litigation, which has highlighted the difficulties people face when making personal injury claims against multinational companiesnamely, prohibitive legal costs, the need to establish causation in individual cases, the years of delay, and the low levels of compensation available for loss of amenities, for pain and suffering, and for reduced quality of life. When the court ruled that non-legally aided opren actions could not ride on the backs of those with legal aid, many claimants might have been forced to abandon their actions, had not philanthropist Godfrey Bradman stepped in to underwrite their potential legal costs (initially, up to;[11 million, then;[2 million, and finally 5 million). The case was expected to take ten years to come to trial. When the drug’s manufacturers (Eli Lilly) eventually made an offer (most unlikely without Mr Bradman’s intervention), this was universally welcomed, although there was dissatisfaction with the size of individual payments. In the United States Eli Lilly, in 103 opren cases, paid ;[25 million. The 1354 claimants in the main UK coordinated case were forced to settle for a mere £ 2.55 million, and the average payment to an elderly claimant for permanent disability is 2300. So far Lilly has refused to extend its offer of settlement to the second batch of opren claimants. CITCOM has Lord Scarman as its president and Mr Bradman as vice-president; the chairman is Mr Wilson; and the advisory committee contains many lawyers, several members of Parliament, representatives of interest groups, but, surprisingly, only one doctor (Dr Andrew Herxheimer, a clinical pharmacologist). CITCOM’s main objectives are:

(1) To tackle the problem of low levels of compensation for

personal injury via a Citizen’s Compensation Act. The Act would set up a Compensation Advisory Board to review guidelines and formulae for assessing awards, placing more emphasis than at present on pain, suffering, and loss of quality of life. (2) To ensure that lack of money is not a bar to seeking compensation by making legal aid more widely available. CITCOM also aird the possibility of "a limited and regulated form of contingency fee". (3) When many victims are involved, as in disasters such as the Bradford and King’s Cross fires and the Zeebrugge ferry sinking and in drugs cases, basic questions of causation should be settled by an urgent publicly funded judicial inquiry. Such inquiries would thus clear the way for early compensation for victims of the disaster. The scope and powers of such judicial inquiries would be defined in the proposed Citizen’s Compensation Act. (4) The Lord Chancellor would be asked to establish a framework for class actions "so that issues common to all claimants injured by a particular product or action can be dealt with in the most efficient and economical manner". (5) In the Consumer Protection Act the development risk defence should be removed or at least much reduced in scope by bringing it into line with the EEC product liability directive.

Citizen Campaign focuses on multiple drug or product liability based claims or actions arising from disasters rather than on single medical negligence claims. Certainly reform is needed here, and a valuable first step would be for Parliament to remove the development risk defence from the Consumer Protection Act. However-and perhaps not surprisingly with so many lawyers on the committeeCITCOM aims primarily to achieve reform by means of the existing adversarial legal system. It seeks to make the process quicker and cheaper and to increase the levels of compensation for loss of amenity and pain and suffering. It also wants more equality in the adversarial process and would promote novel (for the UK) concepts such as publicly funded, prompt inquiries into causation and a form of contingency fee system which would give the lawyer a stake in the winnings, letting him take the risk of having to pay his own costs (but not the other side’s) if he loses. Contingency fees are unlikely to appeal where the damages are expected to be small because the costs will be high. Contingency fees (usual in the USA) have long been regarded with distaste by British lawyers, but dissatisfaction with the costs the unaided private litigant faces under the present system has prompted its reconsideration. The United States is a much more consumer-oriented society, but this has a price: it is also obsessively litigious and adversarial. Juries who feel sympathetic towards the plight of individuals may vote them enormous sums to compensate for personal injuries, taking into account the percentage of contingency fees payable by the plaintiff. There is no rule in such cases that costs are awarded to the winning party, and what would happen to the successful defendant who has no award of damages out of which to fund his costs is uncertain. CITCOM believes that the changes it seeks would mean that few cases would need to go to trial, and most would be settled at an earlier stage. A questioner at the campaign’s press conference who asked about the committee’s views on a "no fault" compensation scheme on Swedish or New Zealand lines was told that the committee felt "lukewarm" though opinions varied on the best options available. However, the CITCOM news-sheet states that the campaign "will continue to explore other possible initiatives, including forms of no-fault compensation in some areas". Certainly a pharmaceutical insurance scheme on Swedish lines with a tariff of payments, which could be revised annually or index-linked, seems simpler and cheaper than the mass, subsidised litigation that CITCOM seeks.

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However, the creation of such a compensation fund, which would dispense with the need for litigation, is not an attractive option to most lawyers who specialise in personal injury litigation. CITCOM’s first news-sheet notes that a recent opinion poll had shown that "Some 93% believe there should be parliamentary action to make the drug companies contribute to a special fund to make swifter payments to the victims of drug disasters". DIANA BRAHAMS, Barrister-at-law

Obituary BRIAN DOUGLAS RAYMOND WILSON MB Lond, FRCP Dr Wilson, who had been senior children’s physician at St Thomas’ Hospital, London, died on April 30 at the age of 72.

He was at school at Sherboume and he trained and qualified (1939) at St Thomas’s. Although he was in the Indian Army during the war and underwent further paediatric training at Great Ormond Street, he was associated with St Thomas’ for nearly 50 years, man and boy, when he retired in 1980. After being Dr Bernard Schlesinger’s house physician at Great Ormond Street, he returned to St Thomas’ as paediatric assistant to Dr Forest Smith. He was appointed paediatric consultant in 1950, which involved sessions at the Royal Waterloo, Lambeth Hospital, and the General Lying-in Hospital. He also had one session at the Mile End Hospital. BDR was a superb no-nonsense clinical paediatrician of the old school whose appearance, demeanour, and resounding voice betrayed the Indian Army connection. He was elected FRCP in 1960 but never sought prestigious office in medical and paediatric establishments. He was content to give children a fine clinical service and to enthuse and teach generations of students and housemen. He had a penchant for pithy, witty turns of phrase which summarised situations in

few words where others might take as disguised his kindness to his small patients and their parents and his loyalty and concern for students, junior staff, and all the institutions of St Thomas’. He was a keen supporter of student clubs and sporting activities and always showed a strong, almost old fashioned loyalty to his family, patients, friends, and colleagues. St Thomas’ lost one of its well known characters when he retired. His retirement years were happy with his beloved wife and garden, trout fishing, and continued commitment to Pony Riding for the Disabled, a charity he had supported for years and of which he had been chairman. He is survived by his wife, Evelyn, two sons, and four a

many sentences. His bluff exterior

grand-daughters. J. W. s. H. B. adds: Brian

heart was a family man and his department at St like an extended family. For those privileged to be part of it, it was often the happiest period of their careers. Thanks to him an astonishing number of consultant paediatricians sprouted from such a small department. At one stage, I counted 25 in ten years, including 3 professors. He was an unerring judge of character and knew instinctively how to field a winning team. He always played his own innings with a perfectly straight bat so that others could score the centuries. The Colonel Blimpish appearance was belied by a splendid sense of fun and a disarming twinkle and no mother or child ever felt the least bit threatened. He never had an unkind word for anybody other than shop stewards, pickets, the work-shy masses of the "working" class, the millions of labour voters and the entire world population east of Ostend. It was a splendid act and everybody knew it. The fun and laughter have been dimmed for a generation of friends, colleagues, and, most of

Thomas’

at

was

all, family.

Notes and News THE NURSING CRISIS 30 000 of Britain’s 300 000 full-time nurses employed by the NHS leave every year. 21000 of these nurses do not return and the balance must be met by newly qualified staff fresh from nurse training. Price Waterhouse has been carrying out investigations on behalf of the UK Central Council for Nurses, Midwives, and Health Visitors and has identified three reasons why the supply of new nurses will begin to run dry: demographic changes will lead to a reduction by 25% in the number of women aged 18-19 between now and 1994; increased competition for staff from other employers; and widespread concern that nursing is no longer perceived to be an attractive career. A survey1 conducted by Price Waterhouse on behalf of NHS Chairmen and General Managers has found that the main reason for nurses leaving the NHS is pregnancy. But there are three sources of dissatisfaction: pay, workload, and management attitudes. Pay is of less importance to nurses joining the NHS but it is a major factor influencing the decision to leave. 85 % of nurses considered that their pay compared unfavourably with jobs outside the NHS. 76% of nurses reported that they were mentally exhausted after work; 72% stated that there were inadequate levels of staff; and 52% reported that they were under too much stress. 66% of NHS nurses regarded management as inflexible and failing to provide overall support. HEARTS AND HYPERLIPIDAEMIA

EARLIER this month, the European Atherosclerosis Society released a policy statement on the diagnosis and treatment of hyperlipidaemia in adults, published in the May edition of the European Heart Journal. They suggest that treatment should begin with dietary restrictions at a serum cholesterol above 200 mg/dl (5-2 mmol/1), and estimate that some 16% of all myocardial infarctions in men aged 40-64 years could be prevented by diet changes alone, and a further 67% by diet and drug treatment. In response to questions, they suggested that lowering cholesterol concentrations in the blood should lead to regression of atherosclerosis, and that there was no reason to believe that arteries would behave differently at different ages. Unfortunately, new evidence for this and for the benefit of non-selective lipid-lowering intervention was not forthcoming. Although hyperlipidaemia must have a role in atherogenesis, to persuade over 60% of adult men2,3 to alter their diet will require more evidence than is available as yet. If, however, the lipid evangelists are right, a semantic problem will have to be solved-how can a condition be called hyperlipidaemia if it occurs in most of the population? WORLD DIRECTORY OF MEDICAL SCHOOLS THE sixth edition of the World Directory of Medical Schools’ includes information about medical schools in 127 countries or territories and about licensing requirements in an additional 32 that do not have medical schools. A total of 82 countries require some form of government service from their graduates: in 25 countries, all doctors are obliged to work in government service; in 7, work has to be done in a rural area for between 1 and 3 years after qualification; and in 11, graduates who have received a government grant have to work in government service for anything between 3 and 10 years or for unstipulated times. Tuition is usually in the native language, but English (or American) is used in 42 countries where it is not the native tongue. Information about intake, conditions of acceptance, and curriculum is easily gleaned from this skilfully assembled guide. 1. Nurse Retention and Recruitment: A Matter of Priority. Report on the Factors Affecting the Retention and Recruitment of Nurses, Midwives and Health Visitors in the NHS. Available from Price Waterhouse, Office of Healthcare Services, 19

Berkeley Square, Clifton, Bristol BS8 1HB. prevention of coronary heart disease. Lancet 1987, i: 264-65. Martin MJ, Hulley SB, Browner WS, Kuller IH, Wentworth D Serum cholesterol, blood pressure, and mortality: Implications from a cohort of 361 662 men. Lancet

2. Anon. A strategy for the

3.

1986; ii: 933-36 Directory of Medical Schools. 6th edition. Published by the World Health Organisation. 1988. Pp 311. ISBN 92-41500085 35 Sw Fr, US $21

4. World