Challenging the gods
25 February 2002
"It sounds a bit gloomy." It was with these words that Arnold Simanowitz received his OBE from the Queen at Buckingham Palace at the end of last year, awarded for his groundbreaking work with the charity Action for Victims of Medical Accidents (Avma).
"Well, it can be - but it can also be extremely satisfying," Avma's chief executive replied. Gloomy or not, clinical negligence lawyers and their clients owe a considerable debt of gratitude to the pioneering work of Avma over the last two decades.
"It's a recognition that the role of Avma is worthwhile, whereas when we started we were seen as controversial and not in the interests of the community," says Simanowitz, who was born and who qualified as a solicitor in South Africa. This year marks a double celebration for the group, which has reached its 20th birthday.
Avma was created following the broadcast of a television play entitled Minor Complications in 1981, which told the story of a woman who suffered undiagnosed complications after a routine operation. It was screened at a time when patients were reluctant to stand up to doctors and the play struck a chord with many who had suffered in silence. The author, Peter Ransley, was taken aback by the response and made an appeal in the press to set up a charity to help people.
Simanowitz, then a partner in a legal aid practice in London, responded to Ransley's appeal. His knowledge of victims of medical negligence was limited to a couple of clients injured by medical blunders, but at that time there simply was no clinical negligence industry - only 800 legal aid certificates were issued a year - and personal injury (PI) lawyers were unlikely to have more than one or two clients.
According to Simanowitz, those people who had suffered accidents were like "lost souls". He recalls: "They were totally isolated, because the attitude of the medical profession was that accidents don't happen."
Simanowitz believes that society was more deferential then. "Doctors were seen as gods," he says. "And let's face it, they encouraged that attitude and it certainly served them well in relation to medical accidents."
The group applied unsuccessfully to the King's Fund for money. "They thought we were too radical and didn't quite know how we were going to behave," Simanowitz says. However, Ken Livingstone's Greater London Council was more receptive and provided the new group with the necessary funds to start up.
So Avma began its job, in the words of its first press release, of putting medical accidents on the agenda. At the beginning, Simanowitz was Avma's sole employee, working from home and equipped with only a phone and an answer machine.
Shortly after the group began, the BBC screened Minor Complications once again, but this time with Avma's contact details. "I had hundreds of people trying to contact me," Simanowitz recalls. "It wasn't only people who had things going wrong at the time, but people who'd been suffering for years and hadn't been able to do anything about it."
|"Lawyers have done the victims of medical accidents a lot of good, but it's not my brief to support the legal profession"|
Arnold Simanowitz, Avma
Of course, many in the medical establishment were not so pleased to see the arrival of this new pressure group. Simanowitz recalls the first time he had to share a platform with a representative from the Medical Defence Union (MDU). "They were absolutely shocked that there was someone who knew about the issues, because they'd never been opposed before," he says. As far as the MDU was concerned, the doctors had only to pay their subscriptions and it would take care of any legal actions.
Clashes with leading figures in the medical profession, including successive presidents of the General Medical Council, were to follow. Simanowitz believes that the problem was the "reactionary mindset" pervading in the profession that "doctors know best".
"It's one of the things that we come up with all the time, and it's still residual," he says. But he says he understands the frustration of the doctor who spends half the night fighting to save a patient's life, only to leave that person incontinent. "It's actually your fault, yet you've saved their life," he adds.
But he believes that the medical profession needs a new approach to accidents. "In our system, at the moment there's only one way you can improve the quality of life for the victims of medical accidents, and that's by establishing negligence," he says. Avma is pushing for a change in NHS culture, whereby the profession supports those staff that make mistakes. "But," he argues, "making it quite clear that it's something that they have to come to terms with. You don't give support to them by helping them defeat the patient, but you do by helping them to help the patient."
Avma now has 25 members of staff and a budget of nearly £1m. Over the years it has directly helped more than 50,000 patients and relatives to obtain explanations, compensation and justice. In addition, it has set up its Lawyers Service to ensure the standards among solicitors who are pursuing clinical negligence claims. Simanowitz has become a familiar figure promoting patient safety on the frontline - for example, contributing to Lord Woolf's inquiry into civil justice and currently advising on the Chief Medical Officer (CMO) Sir Liam Donaldson's inquiry that will inform the Government on its reforms of the system for dealing with clinical negligence claims.
When Avma's first clients walked through the door, Simanowitz used to say that they were the tip of the iceberg - and he is still saying it now. He reckons that about 30,000 people a year take legal advice for clinical negligence claims, and Avma deals with a further 6,000. According to the CMO, there are in the region of a staggering 850,000 "untoward events" that occur every year in the health service. "There is potentially a major problem ahead and there's only one way of dealing with it, and that's making sure that accidents don't happen," Simanowitz says.
A key objective for the group was to lobby for a health inspectorate. It looks as if that has been realised with the arm's-length health services inspection body the Commission for Health Improvement, which Avma hopes will be given "better teeth" to inspect in the new Health Bill. Another welcome body is the National Patient Safety Agency, which will collect statistics on medical accidents. "We've been campaigning for this for years," says Simanowitz, who sits on the agency's board. "How can you deal with the problem if you don't know the size of it?"
If the medical profession is not open about its mistakes, many would argue that it is the fault of the lawyers. According to Ian Kennedy, the law professor who headed the inquiry into the heart surgery baby scandal at Bristol Royal Infirmary, clinical negligence litigation is "one of the most significant barriers to open reporting, and therefore to learning".
"There's no incentive to admit error, to investigate error, to change practices," Kennedy said last year. "There's every incentive to deny and cover up, not least because your career is on the line or your budget may be on the line." Avma was involved in the inquiry, which in itself is a sign of how influential the group has become.
Simanowitz takes issue with such lawyer-bashing. "While we don't encourage litigation for litigation's sake, I'd like to move away from litigation if the patient could be properly dealt with," he says, adding that he believes "lawyers have done the victims of medical accidents a lot of good, but it's not my brief to support the legal profession".
The Government has been looking at a number of alternatives to litigation, such as no-fault compensation schemes or systems of fixed payments. The lawyer admits that he used to believe a no-fault system was the way forward. "I was quite beguiled by it," he says, before adding that such regimes have failed elsewhere, leaving patients poorly compensated and with the issue of causation having been ducked. However, he does not rule out a fixed payment system for claims of a lower value.
"When you're talking about the larger claims, any bureaucratic administrative process isn't going to deal with the needs of the patient," says Simanowitz. According to the lawyer, Avma is interested chiefly in two things - patient safety ("that's our watchword"), and a patient's needs when things go wrong. "I don't think it will help either of those," he adds.
So what prompted Simanowitz to reply to Ransley's appeal 20 years ago? He says that there were no personal reasons other than his experiences with one or two clients. "But I'm personally involved in that I feel very strongly for the people who've been injured," he says.
As Simanowitz puts it: "We put all-out faith in doctors however much they're attacked and we don't expect them to do something wrong; and when they do we feel let down, and when they deny it we feel doubly let down - and that's something one can feel passionate about."