Is medical innovation inhibited by fear of litigation?

Litigation for damages for clinical professional negligence has the objective of providing financial compensation for patients who suffer injuries as a result of incompetent treatment. The objective is an award of damages which places claimants as nearly as possible in the position, in so far as money can achieve, as they would have been in had they not been injured, although no money can compensate for bodily injury and the experience of pain. Those damages come from the public funds allocated to provide care through the NHS. For the fair and proper resolution of disputes over breaches of the standard of care and causation of injury, specialist lawyers, medical experts and an effective judicial system are required. It is a regular cause of concern that so much money is spent on legal costs when they are borne by the public purse. Prompt recognition of culpable error, a genuine apology, and an early offer of appropriate compensation would minimise these costs. Such remedies lie in the hands of the NHS and action in these areas will result in improved standards of care for all.

The new ‘Duty of Candour’ (‘Robbie’s Law’) will help to achieve the accountability which patients seek when things go wrong and reduce the number of those motivated to find it through litigation. Sir Robert Francis QC and James Berry have written an important new chapter in Clinical Negligence, Fifth Edition on NHS complaints procedures reflecting the changes since Mid Staffordshire Inquiry.

Since 2008 the substantive law of clinical negligence remains comfortingly familiar. The major changes concern legal practice and the economics of litigation. As John Baron MP has said ‘get the finances right, and the rest follows’. It seems that privatisation of funding litigation has successfully replaced legal aid, as judged by the increased number of cases, and it has not been a disincentive to lawyers.

We take no position on the government’s present proposals to cap costs, save to emphasise that there must equality of parties. The true costs of defending cases may be a reasonable measure of claimants’ lawyers’ costs. The purpose of defending cases is presumably only to stop unmeritorious claims. The NHS Litigation Authority should not be taking money from the public purse for defending meritorious claims when claimants’ lawyers can no longer recover costs from the public purse for advancing those cases which are unmeritorious.

There is enormous concern about the proposal to bring back, for another time, legislation which is intended to allow doctors wishing to use innovative treatments to avoid being sued in negligence. Worse still, there are private members’ bills in both Houses of Parliament with this aim. This is a matter of much importance. Concern is not limited to those lawyers who practise in this field as it extends to oncologists, medical research scientists and the whole medical profession as represented by the medical royal colleges.

Many patients with terminal illnesses are desperate to try anything which might offer hope of treatment or prolongation of life but a statutory defence which undermines the long established Bolam principle will not help them. On the contrary, it would inevitably encourage irresponsible use of therapies of no proven value. The essentials of efficacy and safety would be sidestepped. The proposed legislation would only provide a charter for quacks who, finding no responsible body of specialist professional opinion to support their treatments, would find easy prey amongst the sick and vulnerable.

No evidence has been produced to show that medical innovation is inhibited by fear of litigation. Legislation would only provide false hope and the real risk of injury and further suffering from untested treatments not supported by responsible practitioners. Moreover, the Supreme Court case of Montgomery v Lanarkshire Health Board demonstrates a judicial retreat from Bolam, based on societal rejection of medical paternalism. Surely the common law is sufficiently pragmatic, robust, and flexible to deal with the challenges of novel clinical situations without clumsy and misconceived legislation.

By way of taking our place in this debate, we are pleased to announce the publication of the fifth edition of Clinical Negligence, this month. For those who cannot obtain redress without litigating, the guidance given on procedure by Marek Bednarczyk and Master David Cook (who replaces Master John Ungley) is the starting point. As in earlier editions, we have sought to avoid a series of monographs on every legal and medical topic. Rather we focused on the major areas of litigation and the emerging ones such as vascular surgery (Cliff Shearman), pain management (Tim Johnson), plastic surgery (Tim Goodacre) and sports medicine (Simon Paul). The distinguished contributors of the medical chapters have been encouraged to be forthright in their opinions on the standards now to be expected in their specialties. Thirty-six of the fifty-five contributors are new to this edition, providing a significant injection of new style and insight. Integrating all the chapters, excluding overlap (save where it has been considered important enough to have different view points), chasing contributors, resolving differences of view between them and the editors has required an enormous effort by all concerned.

There are many who have provided essential help and guidance but to mention a few, Melissa Coutinho on professional regulation and the General Medical Council, Ricardo Williams on the requirements of practitioners in common law jurisdictions where medical negligence is a developing speciality and John Newton who, besides contributing a new chapter on epidemiology, has played a major role in identifying those willing and able to contribute to many of the medical chapters.

Two are most deserving of our gratitude. First, Sir Barry Jackson who bravely accepted the role of assistant editor and has helped to maintain the focus of the contributors on the purpose of this text so as to achieve the right balance between law and medicine. Second, Kiran Goss, our publisher, who has been a tower of strength, demonstrating infinite patience with us during the three years between conception and publication of this edition. Over 5,000 e-mails have jammed our inboxes and Kiran has helped resolve numerous issues. Even we editors have had our differences. The value of this publication to the two professions and to lay readers comes from the diversity of its contributors and the efforts which have gone in to their contributions. To all those who have given their time and effort to the success of this project, we are enormously grateful.

The law is stated as at 1 June 2015.
Michael J Powers QC
Dr Anthony Barton
July 2015


This Preface is taken from Clinical Negligence, Fifth Edition publishing September 2015 by General Editors: Michael Powers QC and Anthony Barton with Sir Barry Jackson as Assistant Editor.

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