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.
