For Dr Spencer at his Norfolk surgery, the whoops-a-daisy moment came when he dosed a woman with bismuth. Startled by her dyspeptic response, and eager to reassure her increasingly agitated husband, he swallowed a spoonful of the stuff himself. “See? Perfectly safe!”

Two things then happened: Dr Spencer vomited, fell down and lay writhing on the floor. His patient died.

The explanation was simple. As the doctor explained to the coroner, bismuth and strychnine look remarkably similar in the bottle and, well, mistakes do happen. At the subsequent trial for manslaughter, Mr Justice Willes agreed. A simple blunder, he said, was not in itself a criminal act. To secure a conviction, the crown would have to prove that the doctor’s medicines were in such chaotic disorder that it was impossible for him to know which was which. Not guilty, said the jury.

That was in 1867. Legal actions against clinical killers then were exceedingly rare, and would remain so. By 1989 only six more doctors had been fingered for manslaughter – an average of one every 20 years. Then something changed. In the 1990s, 17 were prosecuted, and since 2000 there have been 11 more. One or two of them, like the Spencer case, were tales of startling improbability. A woman under anaesthetic was connected to an oxygen cylinder instead of to a ventilator and inflated like a balloon (the anaesthetist got six months’ jail, suspended for 18 months). Mostly, however, they were mundane tragedies of misread notes, wrong drugs or lethal doses administered by exhausted, inexperienced or occasionally negligent practitioners who failed in the most basic of their responsibilities.

This relatively small number of headline cases, however, was only the tiny tip of a legal iceberg. It wasn’t just the police and Crown Prosecution Service who were taking a more critical look at wards and clinics – it was the patients themselves. In England between 1990 and 1998, the rate of civil negligence claims against hospitals doubled, reaching a peak in 1998-9 of 6,168. If we didn’t know them to be true, the numbers would strain credibility. The cost to the NHS of claims settled in 2006-7 was £579.3m. In the same year it was hit by 5,426 new cases. The NHS Litigation Authority (NHSLA) estimates that the combined cost of settling all outstanding claims, including incidents so far unreported, will be £9.09 billion.

Some of the settlements are whoppers – the actress Leslie Ash made headlines in January this year when she was awarded £5m for the paralysing effects of the hospital “superbug” MSSA. The all-time record is the £12.4m paid last year to a professional dancer, Kerstin Parkin, who suffered brain damage from a heart attack during childbirth. Others by comparison are trifling – “a few hundred pounds for someone scratched during an operation” is one example offered by the NHSLA. But there is an important common factor, and it affects us all.

Paralysing tentacles of fear are now putting the squeeze on medical practice, and changing the way we are treated. Type the words “clinical negligence” or “no win, no fee” into Google and you’ll see why – a clamorous pack of legal agencies and law firms who trade on the idea that every accident must be someone’s fault. Some websites even provide interactive body maps showing the value of everything from an injured finger (£1,000 to £75,000) to serious brain damage (millions). The come-on to patients is the promise of “no win, no fee”. If the lawyer wins your case for you, he collects his fee in costs from the other side and you walk away with your damages in full. If he loses, he charges nothing. So, come on! What are you waiting for? Sue the doc!

Many cases in the past have been the medical equivalents of the time-honoured “slips and trips” actions against local authorities with bumpy pavements. Anyone coming out of hospital with a bruise or a sore eye they didn’t go in with was encouraged to call a solicitor. The result was that lawyers’ fees were often higher than the damages they won, and these in turn could be eroded by extra costs – medical reports by independent experts, for example – so that even successful litigants wound up out of pocket. According to the National Audit Office, legal and administrative costs exceed money paid to victims in most claims under £45,000. This is why Citizens Advice in 2004 published a 59-page report on personal-injury compensation under the title No Win, No Fee, No Chance.

As so often with the NHS, vice is the bastard child of virtue. “No win, no fee” deals, known in law as conditional-fee arrangements, were introduced by an amendment to the Courts and Legal Services Act in 1995. It was meant to be a double benefit. The courts would be opened up to those in the income trap who were ineligible for legal aid but unable to afford lawyers. The government itself would save money by effectively privatising legal aid. On the surface it looked like the long-overdue democratisation of civil justice.

But law firms are not charities. Working for nothing – pro bono – is not unknown, but it hardly stands as an ideal business model. If lawyers were to drop their fees when they lost, then they would need a bonus when they won. Recognising this, the law allows a “success fee” of up to double the normal scale. In clinical- negligence cases, when judgment favours the patient, this must be paid by the NHS, otherwise known as the taxpayer.

Given all this, the one surprise is that the number of cases each year is actually going down, albeit very slowly. The cost to the NHS nevertheless continues to rise. How can this be? Ironically, it is due in part to improvements in medicine that allow seriously damaged people – especially children – to survive for near-normal life spans. For this reason, courts are awarding much higher damages. Thirty years ago, for example, children suffering cerebral palsy in birth accidents might be expected to die. Now they can reach late middle age. Damages in such cases, which account for 60% of all claims the NHSLA faces, can run to £5m or more.

The more powerful driver, however, is economic. Lawyers get zero for cases they lose, and double fees for wins. So what are they going to do? Pick losers? Such “perverse incentives”, as Citizens Advice describes them, are a blatant invitation to cherry-pick. If a surgeon saws off the wrong leg, he’ll feel the hot breath of the law on his neck before he reaches the car park. If he screws up an ingrowing toenail, he may sleep in peace. Very small cases (which nevertheless may be enormously significant to the patients), or difficult ones where cause and effect are harder to prove, are not taken up. “No win, no fee” thus translates into “Always win, twice the fee”.

The insurance industry also plays its part in shutting out low-value litigants by refusing to insure them against the costs of losing. Like the lawyers, it would rather back certainties. When people speak about “vulture culture”, however, it is the lawyers that they mean. It may not be the perfect metaphor – vultures in general do not feed on the living – though lawyers, like their avian familiars, do ride effortlessly upwards on thermals of rising cost. In one mental-health case, damages were fixed at £100,000. The lawyers’ bill came to a quarter of a million. In the most notorious case, in 2005, the NHSLA forced a Liverpool firm to drop its bill to £430,000. If this still sounds steep, then reflect on the fact that the sum originally claimed was £4.5m.

“There is no doubt,” says Stephen Walker, chief executive of the NHSLA, “that the costs a solicitor will bill on a conditional-fee agreement will be massively more – massively more – than our own solicitors charge, or are allowed to charge, for defending the same case. In some cases it is 100% more.” This “massive disproportion” is not because the NHSLA is pitting greenhorns against hotshots. It engages top-class practitioners at a rate far beyond the wildest fantasies of most of the litigants – usually in the range of £200 an hour. Claimants’ solicitors typically charge £350, which, under a conditional-fee arrangement, doubles to £700.

) ) ) ) )

Once upon a time, family doctors were revered members of communities that knew how to respect their betters. They tended to tweediness and avuncularity, and knew each patient from the moment of conception. Their status was impregnable. Like magistrates (which they also often were), they dwelt upon a high moral plateau where errors and injustices were as rare as club-footed Martians with syphilis. They cut your umbilical cord, signed your passport photograph and came to your funeral. You would no more think of suing them than you would of denying God or insulting the king. Doctors for their part were sworn by Hippocrates to guard the sick against harm and injustice. From this grew the modern ideal of “preventive medicine” – the inoculations, health checks, dietary advice and so forth that cure illnesses before they happen.

All this now is changing. Vulture culture, compensation culture, blame culture. Call it what you will, the effect is the same. As the British Medical Journal pointed out, the rise in prosecutions in the late 20th century was not likely to have been caused by a sudden epidemic of clinical malpractice. An entire profession does not go rotten overnight. “More plausible explanations,” it suggested, were “a greater readiness to call the police or to prosecute, perhaps because the Crown Prosecution Service perceives that juries are readier to convict nowadays.”

The old notion of a lifelong relationship between patient and practitioner was also under assault. Large group practices and the increasing influence of professional managers made the NHS seem more remote and bureaucratic.

Suing it seemed less like attacking a friend than asserting your rights against an impersonal monolith that knew you only as a computer file. Instead of grumbling about our grievances, we went to law, and doctors went on the defensive. Out went the bedside manner; in came proceedings that, in the words of the government’s chief medical officer, Sir Liam Donaldson, “frequently progress in an atmosphere of confrontation, acrimony, misunderstanding and bitterness”.

This is the real cost of the compensation culture. Preventive medicine (protecting the patient) is being superseded by defensive medicine (protecting the doctor from litigation). What it means is that GPs behave more like trampolines than physicians, bouncing their patients on to consultants rather than taking responsibility themselves. It means a plethora of clinically unnecessary, just-in-case blood tests, x-rays, endoscopic examinations, CT and MRI scans, avoidance of tricky procedures, shunning of awkward patients and reluctance to try new treatments. As birth defects account for the majority of new claims each year, it results in a huge increase in the number of caesareans.

Research in America, where the problem is routinely described as “out of control”, shows that defensive medicine has no benefit to the patient: it serves only to reinforce the legal bunker within which doctors must cover their backs. The cost to the US economy is reckoned at over $100 billion a year. Nobody yet has done the sum for the UK, but who would bet against its being in the billions?

Worse: it has also cancelled the benefit of the best treatment that medicine has ever devised. “Time,” says Dr Peter Holden, a Matlock GP who speaks for the BMA. “It’s one of the most important tools in diagnosis. Sometimes you have to tell your patient it’s too early to know. Let’s have another look in a fortnight. It’s watch, wait and see. Don’t go diving in.” In a greed-driven, litigious society, he says, such old-fashioned care is no longer possible. Conclusions have to be jumped to. “We want answers now. Otherwise, if something goes wrong, the lawyers will make a meal of you for using time. ‘You delayed your diagnosis, doctor.’”

Because of rapacious lawyers, he says, GPs now prescribe more freely, refer patients to consultants and order laboratory tests much earlier than they would have done in the past. “It’s dumbing down what we do. It requires experience and judgment to do nothing. If there was a diagnostic test for everything, then why would you need a doctor? Now I can spend a whole surgery writing out test request forms. It’s a hell of a long way from preventive medicine.” Because GPs, like consultants in private practice, are self-employed, they are not covered by the NHSLA’s Clinical Negligence Scheme for Trusts – effectively a government-run insurance scheme into which local NHS trusts pay annual premiums of up to £5m each. GPs and private practitioners instead have to use specialist insurance companies whose payouts are not included by the NHS but still siphon money away from medicine and into law. The Medical Defence Union, which indemnifies just over half the UK’s GPs and private consultants, primly declines to reveal the figures.

) ) ) ) )

Fee inflation is not the only bonus ball in the compensation lottery. Forty-one per cent of clinical claims received by the NHSLA are settled out of court. This of course means that they depend on horse-trading. Horse-trading, moreover, in which there is a clear conflict of interest. As the NHSLA’s Stephen Walker points out, the precise level of damages received by their clients is of little importance to solicitors. All they need to earn their fee is a “win”. Thus when the defence offers, say, 10% or 50% of the value of the claim, a solicitor may steer his client towards the easiest settlement rather than the best. This is effectively connived at by the NHSLA itself, which, on behalf of the taxpayer, is bound to press for lower settlements.

Insurers, too, may be more interested in closing the file than maximising the payout. And this really is the nub. The babes in the wood had a better idea of topography than most laymen who stray into the thickets of the law. How do you tell good advice from bad? How do you calculate the value of your own pain?

“As professionals, we know exactly what an injury is worth,” says Stephen Walker, “but Mr Jones the patient doesn’t know that. Why should he trust us?” Amanda Stevens, a former hospital administrator who is now president of the Association of Personal Injury Lawyers (Apil), agrees absolutely. If the hospital makes an offer, who is to know whether it is fair and reasonable? There are obvious difficulties for laymen facing highly sophisticated, well-trained professionals. One widely touted solution is a “no fault” compensation scheme that would pay on “balance of probability” that injury has been caused by treatment in hospital. There would be no need to prove negligence.

Advocates argue that this would be fairer, faster, cheaper and more consistent than the current system, which sets patients and doctors at each other’s throats. It would also make it easier for doctors to report their own mishaps. Opponents say there is no such thing as “no fault”. There would still be disputes about blame and damages, and it would trigger the biggest claims bonanza in history – Sir Liam Donaldson estimated the likely cost to the NHS at £4 billion a year. This is why it’s not going to happen.

Instead we are offered something called “the NHS Redress Scheme”, currently being worked out by the Department of Health and due to begin next year. This promises only “apologies and explanations, a spirit of openness, a culture of learning from mistakes and robust investigation”. Which may usher in a new era of fairness and rigour, or may make no difference that anyone but an NHS bureaucrat will notice.

What’s supposed to happen is that health professionals take off their masks and become more open, honest and accessible. Instead of retreating into knee-jerk defensiveness and how-dare-you high dudgeon, hospitals will voluntarily admit their errors and offer compensation. Several problems arise here, not all of which have to do with the flight trim of rose-coloured pigs. First and most obviously, it invites the NHS to sit in judgment in its own case. When a patient has been harmed by a doctor, says Amanda Stevens, “there is an enormous sense of a breach of trust. Then to have that person or their colleagues scrutinising your claim… It doesn’t cut the mustard”.

Last August the NHSLA wrote to the chief executives and finance directors of all NHS trusts. While encouraging them to be sympathetic to aggrieved patients and to offer “appropriate information”, it clearly didn’t want honesty to get out of hand. “Care needs to be taken in the dissemination of explanations so as to avoid further litigation risks…” Not much change there, then.

The second problem, which follows from the first, is the extended failure of Stephen Walker’s “Mr Jones” test. Under the Redress system, patients will still not know whether offers made to them are fair. They will still need lawyers, and disputes will go on heading for the courts. Neither will it do anything to alter the burden of proof. As they do now, claimants will still have to show not only that negligence has occurred (which is relatively easy) but also that it is the direct cause of their injury (which is much more difficult). Peter Walsh, chief executive of the charity Action Against Medical Accidents (AvMA), declares himself “very disappointed in the lack of imagination shown. It’s not the radical shake-up we were hoping for”. In particular, he was looking for a shift in the burden of proof. “Once negligence has been established,” he says, “we should turn the burden of proof round and say it’s up to the defendant to explain why the injury or death would have occurred regardless of their mistake.”

Walsh does not buy into the idea that avaricious lawyers alone are to blame for the escalating costs of clinical negligence, or even that the costs are excessive. “They come to well under 1% of the NHS budget,” he says, “so the notion that claims are bleeding the NHS dry doesn’t hold water.” Furthermore, it’s entirely reasonable for claimants’ solicitors to charge more than their opponents do.

Apil’s Amanda Stevens agrees. “It’s much more costly to prepare evidence to prove a claim than it is to assemble evidence to knock it down,” she says. The British public, too, is very far from the writ-happy mob of gold-diggers that the headlines often suggest. “They do not like making a claim.” Every year, she says, around 800,000 “adverse clinical events” are recorded in the NHS, and many more – at least 20% – go unreported. Yet only 1% of the victims make a claim, and only 10% of these – ie, 0.1% of the total – get damages. Thus if the NHSLA believes it is shelling out too much in costs, the remedy is in its own hands.

It is a legal catch-22. The NHSLA is duty-bound to keep expense to a minimum, and therefore to challenge costs awarded against it. This means that more cases go to appeal and legal costs escalate. Peter Walsh invites the NHSLA to draw the obvious conclusion.

“Stop arguing, admit fault and settle earlier without drawn-out legal wrangling,” he says. “That alone would save millions of pounds.”

) ) ) ) )

Of all the ways to cut the costs of medical negligence, one stands out way above the others: avoid being negligent in the first place. The NHS needs literally to clean up its act. Here are some figures reported by Sir Liam Donaldson in 2003: 10% of hospital admissions may result in something going wrong; 5% of the entire population report “some adverse effects” of medical care; 18% of patients say they have been victims of “medication error” within the past two years. On top of all the traditional foul-ups – missed diagnoses, poor or inadequate treatment, slipped scalpels and lethal drug doses – now looms the utterly modern phenomenon of the drug-resistant hospital infection. As recently as February, the Department of Health thought it necessary to launch a national campaign against the over-prescription of antibiotics. “The more we take antibiotics when they are not necessary,” said Donaldson, “the more bacteria will become resistant to them.” Yet patients with runny noses still think they can be cured by them, and – for all that they know better – some doctors still go on doling them out.

The other thing that bacteria love is filth, and the ideal place to look for it is in an NHS hospital. The result is that there are now law firms claiming to specialise in hospital “superbug” cases, and the number of claims is multiplying like bacteria on a Petri dish. One of the most notorious cases involved the three hospitals administered by the Maidstone and Tunbridge Wells NHS Trust where, between April 2004 and September 2006, more than 1,170 patients were infected with Clostridium difficile. According to the Healthcare Commission’s official report, about 90 people “definitely or probably died as a result of the infection”. The commission’s inspectors found that the hospitals were epidemics waiting to happen. Supposedly clean bedpans were contaminated with excrement. Nurses were not washing their hands, emptying commodes, cleaning mattresses and equipment, or wearing aprons and gloves. If there was a parlour game called “pass the bacteria”, this is how you’d play it. The health secretary, Alan Johnson, described the episode as “scandalous”, and Kent police are still weighing the possibility of prosecution.

Another NHS trust in trouble was Bromley, against which the commission issued an “improvement notice” in February. Inspectors found an absence of routine cleaning around beds in the wards; sterilising equipment not being properly used; dirty commodes marked clean and ready for use; a blood-culture bottle trolley thickly covered in dust, and more. One is always wary of generalising from the particular, but there is no reason to suppose that these two trusts are wholly out of the ordinary. In fact, there is every reason to think otherwise. In June the Healthcare Commission reported that 103 of the 391 primary-care and hospital trusts in England were not meeting statutory hygiene standards – a failure rate of over 25%.

The nurses might not be washing their hands, but the lawyers sure as hell are rubbing theirs.

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