On Monday 5 February, Clare Foges, one of the regular feature writers for the Times wrote an excoriating piece on the compensation culture in response to a call from NHS leaders to the Justice Secretary to cut the cost of clinical negligence claims.
She has already received a number of replies – some more informed than others. In her column she (rather disparagingly, I feel) refers to the clinical negligence ‘industry’. This comment, in itself, reveals the depth of her ignorance about how a negligence claim against a medical professional can be conducted. Through the use of that phrase she channels all the prejudice that is routinely directed at the legal profession for doing a job that helps to keep members of the public safe.
To err is to be human
I completely agree with her that doctors are human and thus fallible. Making an error is, indeed, human and most medical errors do not lead to negligence claims, in spite of Ms Foges’ implication that it is only a perfect doctor who has any chance of avoiding a claim being made against them. The reason for this is the number of very high hurdles that have to be jumped in order to establish that a negligence claim exists. The test is a relatively simple one, but very hard to prove: it amounts to what an ordinary doctor would do given the same circumstance. So, if a body of ordinary medical opinion considers that the doctor’s actions are exactly as they would have done themselves, then there is no case to answer. Doctors are judged by the standards of their own profession, and not by lawyers.
Errors do not automatically equate to negligence
If doctors are practising defensive medicine with ‘the sword of Damocles tickling their scalps’ then they clearly do not understand the principle of peer opinion either. There are many excellent, dedicated doctors who regularly make judgments based on their experience; very occasionally they will make a wrong call resulting in a tragic outcome. But this does not mean that they will be sued – in the vast majority of cases, they will not – there will be no case to answer because a reasonable body of medical opinion will concur that they would have made a similar decision. Where negligence claims will succeed is where the reasonable body of medical opinion agrees that the action taken was not of the standard expected.
Encouraging a culture of openness, to which Ms Foges refers, is essential but, in my experience, it remains more principle than practice. I certainly agree that an apology made as soon as an error becomes apparent would certainly head off many complaints. But that apology must be sincere, made within a sensible timeframe, and with assurances that things will be done to avoid a similar mistake happening again.
NHS still struggles with the principle of transparency
But, in my opinion, it is not the fear of being sued that mitigates against openness, it is the culture and lack of transparency throughout some parts of the NHS which simply will not admit a mistake has been made. Initiatives to improve openness and transparency, not least those championed by Sir Robert Francis (chair of the Mid-Staffs enquiry) are promulgated in name only. I represent clients who are still being injured by the same negligence which keep being repeated. These are incidents from which others have suffered and have been compensated in the past – and yet NHS Resolution (the funding for claims) continues to mount an aggressive defence of an indefensible claim. This is in spite of the test to establish the validity of the claim being passed, and a body of supportive evidence being presented by – yes, doctors! My experience has been that this attitude (plus the inefficient handling of many cases) contributes to costly litigation being unnecessarily drawn out until finally a settlement is reached which could have been completed much earlier, or even avoided altogether, if the hospital had admitted the error and apologised in the first place. The argument that lawyers are to blame for spiralling costs of claims is not just wrong; it is irritatingly ill-informed.
No patient pursues a claim lightly
Taking on a claim as a patient is not for the faint-hearted. In my experience, people will only come to me as a last resort – and I will only take on their claim if it has merit: 85% of our initial enquiries fail the test and are rejected (and these, in turn, represent a small minority of cases that pass our own rigorous, first stage screening). There is not a compensation culture when it comes to medical mistakes. There cannot be – experienced negligence lawyers know how finely judged many medical decisions are and know that negligence is very rarely the reason for making a wrong call. But faced with a doctor like Ian Paterson who did untold damage to the women in his care, it is the patients and their lawyers you have to thank for bringing him to justice, not the hospitals who allowed him to continue practising despite being under investigation.