Treatment for negligence

There has been a steady rise in the number and value of negligence awards against the medical profession recently. Although not yet reaching the heights of certain libel actions, they are becoming inflated and inconsistent – a situation that could damage healthcare, burden the taxpayer, give false hopes to plaintiffs and snowball as lawyers take advantage of an increasingly lucrative business.

Only 10 years ago it was considered far too difficult to sue doctors. To do so, a plaintiff has always needed expert medical evidence to support his claim and there was a reluctance on the part of doctors to give such evidence against their colleagues. In fact, those who did were regarded as letting the side down.

Further, when doctors and hospitals were sued, the courts tended to interpret the Bolam test generously towards doctors with the result that only the most glaring errors resulted in findings of negligence.

But all this has changed through two main factors. First, there has been a gradual increase in the number of doctors prepared to criticise their colleagues, spurred on by the realisation that discussing cases in conference and providing reports – if not actually appearing in court – provides a welcome change from dealing with patients and hospital administration. Doctors have also enjoyed the resulting due deference from the legal profession, and the fact that remuneration for their efforts is more than adequate has also proved to be a considerable incentive. In addition, medico-legal work provides a useful bridge into retirement for many doctors.

Action for Victims of Medical Accidents (Avma) has also been a significant instrument for change. Formed following a television programme, it now has a powerful role to play in medical negligence litigation. Lawyers and suitable experts are identified by the Avma with the result that most of the bigger cases are conducted by highly specialised lawyers, usually the equal of those representing the hospitals and doctors.

There is now a perception that perhaps it has all gone too far, and many doctors regard themselves as oppressed by the litigation process.

Although the UK is far from following the US model, as commentators in the tabloid press would have us believe, there is a genuine concern that too much money is being spent on litigation funded by one public body, legal aid, against another, the NHS, where each successful claim against the NHS means fewer beds and less necessary equipment for other patients.

One solution is to change the way litigation is conducted. Lord Woolf proposes that there should be a separate medical negligence list in the Queen's Bench Division. His report recommends special training for Judges to enable them to try medical negligence cases and suggested that, outside London, there should be specially designated court centres where there would be a build-up of experience among the court staff.

Other proposals by Woolf are that, in many cases, a single expert should be called to assist the judge and that more effort should be made to narrow areas of disagreement at an early stage in the litigation process. It is proposed that guidelines be formulated by the Civil Justice Council – a body recommended by the interim Woolf report.

It is still unclear whether Woolf's recommendations will be officially introduced, but in the interim period there have already been a number of Practice Directions, and High Court litigation has been assigned to a designated Queen's Bench Division Master.

It is suggested that litigation could be avoided altogether if there was some form of medical mediation. The new Practice Direction 49 asks for a decision to be made on whether a dispute is suitable for mediation at a very early stage, shortly after the service of proceedings. An NHS mediation pilot scheme is in operation and the views of all those involved in the litigation process are actively being sought to develop ideas about how mediation may resolve claims more cheaply and to the greater satisfaction of those involved.

The role of individual health authorities and trusts in handling claims against them has now been passed to the National Health Service Litigation Authority (NHSLA). The aim is to provide greater consistency in dealing with claims and to control costs more effectively.

The NHSLA monitors the progress of every piece of litigation, controls the funding and has to approve all important steps in an action. So far, it seems to have led to earlier admissions of liability and a greater desire to avoid court hearings altogether.

One tactic that appears to be finding favour is the making of one payment only into court rather than topping up existing payments as a case progresses. Of particular concern to the NHSLA are those occasions where considerable time and expense have been spent investigating complex cases, but where the quantum of damage is relatively small. It seems likely that a "commercial" approach will be taken in these instances.

The courts themselves are trying to keep this area of litigation under control, particularly in relation to old claims. Because of an increasing awareness of possible claims against doctors, plaintiffs have often allowed many years to elapse before seeking advice about unsuccessful operations or treatment.

The normal three-year limit can be extended by sections 11 and 14 of the Limitation Act 1980, which provide that time does not begin to run until a person has the necessary knowledge that the injury was significant and was attributable in whole or in part to the act or omission which is alleged to constitute negligence. It is not necessary for a plaintiff to know, as a matter of law, whether those acts or omissions involve negligence as such.

The wording of the Act has enabled judges to take different views of how much a plaintiff needs to know before the limitation clock begins ticking. For example, in Dobbie v Medway Health Authority, the Court of Appeal held that a plaintiff had sufficient knowledge, where just after her breast had been removed, she was informed that the growth which had provoked the hospital to operate was and always had been benign.

There are two inconsistent decisions by the Court of Appeal on the interpretation of section 14, where it deals with the question of constructive knowledge. In Nash v Eli, the Court of Appeal suggested that the approach to constructive knowledge was partly objective and partly subjective – whether it was reasonable for that particular plaintiff having regard to his position, circumstances, character and intelligence to have the necessary knowledge. But in Forbes v Wandsworth Health Authority, it considered that it was wholly an objective test and that regard should be made to the standards of the reasonable man.

Lord Justice Stuart Smith said: "I do not think this will result in patients becoming 'action-happy' or in ambulance-chasing solicitors touting for work. Where the injury or disability is not serious, most patients do not dream of suing unless it is obvious that something has gone wrong that suggests want of care."

It was thought that Forbes would go to the House of Lords, but the death of the plaintiff helped decide his advisers against pursuing the matter further.

If Forbes remains law, it leaves only section 33 and the courts' discretion to keep many old claims from extinction, but the attitude of the courts in cases such as Dobbie indicates that substantial delays will not be indulged in section 33 discretion.

The Government, too, has a part to play. In cases of major public concern there has been intervention, such as in the HIV/haemophiliac litigation. It is also possible that a Government compensation scheme may be set up for those who have suffered ill effects as a result of radiotherapy treatment for cancer. Although, currently, the Government seems to be happy for the matter to proceed through the courts, a trial is due to commence this autumn and the plaintiffs will be faced with a formidable Bolam defence as well as arguments on causation.

One other potent weapon which could be used to deter this type of litigation is to make it unprofitable for lawyers to pursue it. This may well be the effective result of the proposed civil legal aid standard fees for advocates and the increasing restriction on costs recoverable by solicitors in the preparation of cases. It is also proposed that there should be far greater control over experts fees.

From a situation, merely a decade ago, where legal negligence claims were rare, patients have now realised their right to sue their doctors. But claims have grown out of all proportion and the consequent backlash means, hopefully, that control will be applied to create a more consistent and fair medical negligence system.