Cutting to the wick by Quentin Smith
[Published by Keoghs Solicitors in Spark issue 44 - 2013]
The author does not dispute that there may be cases where complaints and compensation are justified by the facts, and nothing in this article should be construed as suggesting the contrary.
As healthcare professionals we work and function in an environment heavily constrained by an apparent ‘culture of compensation’. This has been recognized as a problem for some years now, principally due to the spiralling costs. Around £863 million was paid out by the NHS Litigation Authority in 2010/11, not including legal costs, with claims increasing by about 30% year on year (1). It may not be long before this figure reaches £1 billion. There has also been a sharp rise in complaints to the General Medical Council that reported 8781 cases in 2011 alone, up 23% on 2010 and 69% since 2007, equivalent now to a complaint against 1 in every 64 doctors on the GMC register (2). Only 26% of GMC complaints were progressed, the rest either dismissed outright or after preliminary inquiry (2). An article from the Medical Protection Society in January 2013 questions whether this rise in complaints is due to poor practice or a changing compensation culture (2).
This should not give rise to the misconception that many medical claims are without merit and do not relate to significant patient injury (1). However, even in the USA a study into medical claims has concluded that ‘the main problem is the excessive legal fees to process claims for real injury that may or may not even have been preventable’ (8). In addition, frivolous claims without merit can accumulate huge costs before settlement or abandonment of proceedings (1).
Dr Clare Gerada, Chairman of the Royal College of General Practitioners, said of this rise in complaints to the GMC: “When you see such a rapid increase, such a sudden change, it’s unlikely to be the fact that doctors have become less caring or less competent.” Patients’ expectations are incredibly high these days and failure to meet these expectations, combined perhaps with poor communication, which is implicated most often as a root cause, is very likely to trigger a complaint (10). It has never been easier for a member of the public to report a doctor to the GMC. 65% of complaints to the GMC come directly from the public and if one includes complaints from public body workers (eg police), this figure rises to 82% (2). Impressions gleaned from the level of public complaints to the GMC and of claims for damages, is that society no longer distinguishes between an unsatisfactory outcome and blameworthy negligence.
I am not a lawyer, nor am I involved in medico-legal practice. But I am a practising doctor, constrained in my everyday activities by the knowledge and constant threat of possible complaints and potential litigation. I recently published a medico-legal themed crime mystery novel, The Secret Anatomy of Candles, in which I explored what seem to me to be some of the shortcomings of this ‘culture of compensation’, by attempting to invert the clear expectations of right and wrong that seem to have become so immovably entrenched in the public’s mind. In essence, is it reasonable to assume that whenever something goes wrong it is because someone (who must be punished) has been at fault ?
If there is indeed a ‘culture of compensation’, why has it become entrenched in the public’s psyche of expectation? Is it simply too easily accessible? As an example of such accessible compensation one could cite ‘whiplash injuries’, sometimes resulting from even minor and often trivial traffic accidents. In the UK there are around 1500 such claims made daily, most of which are seldom contested, costing the motor insurance industry (and therefore drivers) around £2 billion per year (1). By comparison, in Lithuania, where few drivers are insured, the condition of chronic neck pain and ‘whiplash injury’ is almost unknown (3).
The late 1990’s saw an unprecedented media campaign against the medical profession, coincidentally in the run up to New Labour’s drive to re-negotiate national medical contracts. Is it just possible that Labour’s extensive and prolonged media campaign, seemingly to impugn the medical professional prior to negotiation, was miscalculated and instead planted a seed in society’s sub-conscience; a seed that has grown into a culture of seeking recompense from what the media had portrayed as a ‘failing medical establishment’?
But, setting aside theories and hypotheses of why this apparent ‘compensation culture’ has seemingly become so entrenched, do compensation claims at any rate serve a useful function in regulating medical standards? After all, most of these cases only end up in the civil courts.
Justification for claims has been proposed, principally purporting that they lead to safer clinical practice through lessons learnt and appropriate measures put into place in the aftermath of claims (1). If this were correct, it would be difficult to explain how it is that, whereas doctors are regulated at work by protocols and guidelines as never before in the history of the British medical profession, the legal claims position nevertheless deteriorates progressively (1). Unfortunately it appears that few constructive lessons are learnt from litigation, let alone compensation claims, and even less of these lessons are disseminated to an audience who may indeed benefit from them (1).
Civil litigation is weighted towards compensation rather than admission of guilt or wrong-doing which might, at least, lead to potential remedial actions or implementation of learning opportunities. In the aftermath of unfavourable rulings, however, reflection usually consists of analysis of weaknesses in case presentation, case management or perhaps choice of expert witness (1). Defendants become resistant to admitting failings, if they exist, and there is no mechanism for disseminating learning opportunities that may emerge from rulings. Court judgements are seldom reported, whether due to confidentiality agreements or simply lack of interest, such that potential learning outcomes remain unrealised.
In addition to this, only about 3% of negligence cases actually reach court, the rest being settled out of court, the majority of outcomes to reflect the balancing of financial risks rather than a judgement on the standards of medical care delivered (1).
Where are the positive learning experiences in all of this, one has to ask? Both the Medical Protection Society and Medical Defence Union issue members with publications discussing clinical cases that have progressed to negligence claims and often litigation, from the perspective of prevention - poor judgement, poor communication, poor performance - mistakes that can hopefully, through learning opportunities, be avoided in the future. I personally find reading these cases incredibly informative and educational.
In The Secret Anatomy of Candles I specifically chose controversial cases of potential negligence to act as vehicles for the thematic questions posed: what do patients seek from the compensation process and more pertinently, is there a threshold beyond which seeking compensation is inappropriate, where blame merely for blame’s sake is unacceptable?
In one of these cases I posed the question: does each member of society owe a duty of care to other members of society by participating in vaccination programs and should this be compulsory? In the aftermath of the MMR vaccination controversy - the epidemic consequences of which we are sadly still seeing (measles epidemics in the north of England [9] and more recently in Wales [11 ] where a man has died as a result) - can an individual who refuses the MMR vaccine reasonably be held responsible for transmitting measles to a vulnerable member of society? Furthermore, what outcome from such a case might appease the claimant: a change in the law; apportionment of blame; apology, or simply financial reward?
Quite possibly the greatest inherent weakness in medical litigation lies in the failure to provide clear cut points of reference needed for determining breach of duty, or causation, or substandard care in healthcare litigation (1). Opinions of medical experts in the absence of such points of reference may create greater opportunity for widely varying and perhaps even contradictory rulings. It has been argued that this lack of clarity even increases the risk of successful litigation (1). The Bolam principle has been used since the 1950’s to determine reasonable standards of care (4), by drawing comparisons with a ‘reasonable body of opinion’. More recently, however, Bolitho has heralded a new threshold in civil litigation allowing a Bolam type defence to be disputed (5). Bolitho is a frightening development for healthcare professionals because new developments and advances are constantly being introduced, but not necessarily widely adopted or implemented, while interpretation and judgement is carried out by legal experts and courts who may judge an individual’s actions against the highest standards of care possible and not necessarily against the threshold defining negligence (1).
Perhaps the most disheartening revelation is an editorial from the 1911 Boston Medical Journal over a hundred years ago, bemoaning the destructive and negative influence of litigation on healthcare (6):
‘Suits at law against reputable physicians for alleged malpractice have attracted unusual attention lately by reason of increasing frequency and absence of reasonable foundation of truth and justice in the charges against the defendant.’
Clearly malpractice litigation and compensation claims are nothing new. Could it simply be the conditional fee arrangements, now so prevalent in the UK, that have fuelled the rise in complaints by increasing accessibility? Most claimants do not have the financial resources to pursue clinical negligence cases alone, especially when there is the financial risk of losing. Legal firms offer ‘no win no fee’ arrangements, losses offset by success and the costs of success being borne by the defence organisations and the NHS Litigation Authority (the taxpayer).
Included amongst a host of reforms to the funding of civil litigation proposed by Lord Justice Jackson is that success fees should no longer be recoverable from the losing party (1,7).
Are there alternatives to suing doctors? If financial gain is removed as a motivation for litigation, patients may want to ensure that others do not needlessly suffer their same fate, or perhaps may even wish to punish individuals or organisations (1). In New Zealand and Sweden, for example, where no fault compensation systems operate, openness and honesty is encouraged that should, theoretically anyway, enable wider access to learning points (1).
Irrespective of whether such systems reduce only the cost or numbers of claims, either outcome would certainly be welcomed with open arms in the UK. However, to confound matters there is information from regulators outside the UK that identifies this rise in patient complaints as an international phenomenon: for example in Denmark complaints have risen 88% since 2007, compared with 69% in the UK (2).
Perhaps, using the simplest of analogies, the carrot dangling from the stick may simply be too big and too juicy. Perhaps the absence of Lithuanian whiplash sufferers says it all (3).
*
Quentin Smith (MBChB DA FCA FRCA) is a Consultant Anaesthetist at City Hospitals Sunderland NHS Foundation Trust and author of the well received medico-legal novel The Secret Anatomy of Candles, published by Matador, 2012.
*
(1) Br J Anaes 2012:109(1):110-122 Quality and Outcomes in anaesthesia: lessons from litigation
(2) Medical Protection Society Casebook 2013 vol. 21 no.1 Complaints Culture
(3) Lancet 1996;347:1207-1211 Natural evolution of late whiplash syndrome outside the medico-legal context
(4) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
(5) Bolitho v City of Hackney Health Authority [1997] 4 All ER771
(6) Boston Med Surg J (now the NEJM) 1911;165:406-411 Suits for alleged malpractice
(7) Ministry of Justice 2010; Proposals for reform of civil litigation funding and costs in England and Wales.
(8) N Engl J Med 2006;354:2024-2033 Claims, errors, and compensation payments in medical malpractice litigation.
(9) www.bbc.co.uk/news/uk-england-21243345
(10) Parliamentary and Health Service Ombudsman 2012. Listening and Learning: The Ombudsman’s review of complaint handling by the NHS in England 2011-12
(11) www.bbc.co.uk/news/uk-wales-22215185
[Published by Keoghs Solicitors in Spark issue 44 - 2013]
The author does not dispute that there may be cases where complaints and compensation are justified by the facts, and nothing in this article should be construed as suggesting the contrary.
As healthcare professionals we work and function in an environment heavily constrained by an apparent ‘culture of compensation’. This has been recognized as a problem for some years now, principally due to the spiralling costs. Around £863 million was paid out by the NHS Litigation Authority in 2010/11, not including legal costs, with claims increasing by about 30% year on year (1). It may not be long before this figure reaches £1 billion. There has also been a sharp rise in complaints to the General Medical Council that reported 8781 cases in 2011 alone, up 23% on 2010 and 69% since 2007, equivalent now to a complaint against 1 in every 64 doctors on the GMC register (2). Only 26% of GMC complaints were progressed, the rest either dismissed outright or after preliminary inquiry (2). An article from the Medical Protection Society in January 2013 questions whether this rise in complaints is due to poor practice or a changing compensation culture (2).
This should not give rise to the misconception that many medical claims are without merit and do not relate to significant patient injury (1). However, even in the USA a study into medical claims has concluded that ‘the main problem is the excessive legal fees to process claims for real injury that may or may not even have been preventable’ (8). In addition, frivolous claims without merit can accumulate huge costs before settlement or abandonment of proceedings (1).
Dr Clare Gerada, Chairman of the Royal College of General Practitioners, said of this rise in complaints to the GMC: “When you see such a rapid increase, such a sudden change, it’s unlikely to be the fact that doctors have become less caring or less competent.” Patients’ expectations are incredibly high these days and failure to meet these expectations, combined perhaps with poor communication, which is implicated most often as a root cause, is very likely to trigger a complaint (10). It has never been easier for a member of the public to report a doctor to the GMC. 65% of complaints to the GMC come directly from the public and if one includes complaints from public body workers (eg police), this figure rises to 82% (2). Impressions gleaned from the level of public complaints to the GMC and of claims for damages, is that society no longer distinguishes between an unsatisfactory outcome and blameworthy negligence.
I am not a lawyer, nor am I involved in medico-legal practice. But I am a practising doctor, constrained in my everyday activities by the knowledge and constant threat of possible complaints and potential litigation. I recently published a medico-legal themed crime mystery novel, The Secret Anatomy of Candles, in which I explored what seem to me to be some of the shortcomings of this ‘culture of compensation’, by attempting to invert the clear expectations of right and wrong that seem to have become so immovably entrenched in the public’s mind. In essence, is it reasonable to assume that whenever something goes wrong it is because someone (who must be punished) has been at fault ?
If there is indeed a ‘culture of compensation’, why has it become entrenched in the public’s psyche of expectation? Is it simply too easily accessible? As an example of such accessible compensation one could cite ‘whiplash injuries’, sometimes resulting from even minor and often trivial traffic accidents. In the UK there are around 1500 such claims made daily, most of which are seldom contested, costing the motor insurance industry (and therefore drivers) around £2 billion per year (1). By comparison, in Lithuania, where few drivers are insured, the condition of chronic neck pain and ‘whiplash injury’ is almost unknown (3).
The late 1990’s saw an unprecedented media campaign against the medical profession, coincidentally in the run up to New Labour’s drive to re-negotiate national medical contracts. Is it just possible that Labour’s extensive and prolonged media campaign, seemingly to impugn the medical professional prior to negotiation, was miscalculated and instead planted a seed in society’s sub-conscience; a seed that has grown into a culture of seeking recompense from what the media had portrayed as a ‘failing medical establishment’?
But, setting aside theories and hypotheses of why this apparent ‘compensation culture’ has seemingly become so entrenched, do compensation claims at any rate serve a useful function in regulating medical standards? After all, most of these cases only end up in the civil courts.
Justification for claims has been proposed, principally purporting that they lead to safer clinical practice through lessons learnt and appropriate measures put into place in the aftermath of claims (1). If this were correct, it would be difficult to explain how it is that, whereas doctors are regulated at work by protocols and guidelines as never before in the history of the British medical profession, the legal claims position nevertheless deteriorates progressively (1). Unfortunately it appears that few constructive lessons are learnt from litigation, let alone compensation claims, and even less of these lessons are disseminated to an audience who may indeed benefit from them (1).
Civil litigation is weighted towards compensation rather than admission of guilt or wrong-doing which might, at least, lead to potential remedial actions or implementation of learning opportunities. In the aftermath of unfavourable rulings, however, reflection usually consists of analysis of weaknesses in case presentation, case management or perhaps choice of expert witness (1). Defendants become resistant to admitting failings, if they exist, and there is no mechanism for disseminating learning opportunities that may emerge from rulings. Court judgements are seldom reported, whether due to confidentiality agreements or simply lack of interest, such that potential learning outcomes remain unrealised.
In addition to this, only about 3% of negligence cases actually reach court, the rest being settled out of court, the majority of outcomes to reflect the balancing of financial risks rather than a judgement on the standards of medical care delivered (1).
Where are the positive learning experiences in all of this, one has to ask? Both the Medical Protection Society and Medical Defence Union issue members with publications discussing clinical cases that have progressed to negligence claims and often litigation, from the perspective of prevention - poor judgement, poor communication, poor performance - mistakes that can hopefully, through learning opportunities, be avoided in the future. I personally find reading these cases incredibly informative and educational.
In The Secret Anatomy of Candles I specifically chose controversial cases of potential negligence to act as vehicles for the thematic questions posed: what do patients seek from the compensation process and more pertinently, is there a threshold beyond which seeking compensation is inappropriate, where blame merely for blame’s sake is unacceptable?
In one of these cases I posed the question: does each member of society owe a duty of care to other members of society by participating in vaccination programs and should this be compulsory? In the aftermath of the MMR vaccination controversy - the epidemic consequences of which we are sadly still seeing (measles epidemics in the north of England [9] and more recently in Wales [11 ] where a man has died as a result) - can an individual who refuses the MMR vaccine reasonably be held responsible for transmitting measles to a vulnerable member of society? Furthermore, what outcome from such a case might appease the claimant: a change in the law; apportionment of blame; apology, or simply financial reward?
Quite possibly the greatest inherent weakness in medical litigation lies in the failure to provide clear cut points of reference needed for determining breach of duty, or causation, or substandard care in healthcare litigation (1). Opinions of medical experts in the absence of such points of reference may create greater opportunity for widely varying and perhaps even contradictory rulings. It has been argued that this lack of clarity even increases the risk of successful litigation (1). The Bolam principle has been used since the 1950’s to determine reasonable standards of care (4), by drawing comparisons with a ‘reasonable body of opinion’. More recently, however, Bolitho has heralded a new threshold in civil litigation allowing a Bolam type defence to be disputed (5). Bolitho is a frightening development for healthcare professionals because new developments and advances are constantly being introduced, but not necessarily widely adopted or implemented, while interpretation and judgement is carried out by legal experts and courts who may judge an individual’s actions against the highest standards of care possible and not necessarily against the threshold defining negligence (1).
Perhaps the most disheartening revelation is an editorial from the 1911 Boston Medical Journal over a hundred years ago, bemoaning the destructive and negative influence of litigation on healthcare (6):
‘Suits at law against reputable physicians for alleged malpractice have attracted unusual attention lately by reason of increasing frequency and absence of reasonable foundation of truth and justice in the charges against the defendant.’
Clearly malpractice litigation and compensation claims are nothing new. Could it simply be the conditional fee arrangements, now so prevalent in the UK, that have fuelled the rise in complaints by increasing accessibility? Most claimants do not have the financial resources to pursue clinical negligence cases alone, especially when there is the financial risk of losing. Legal firms offer ‘no win no fee’ arrangements, losses offset by success and the costs of success being borne by the defence organisations and the NHS Litigation Authority (the taxpayer).
Included amongst a host of reforms to the funding of civil litigation proposed by Lord Justice Jackson is that success fees should no longer be recoverable from the losing party (1,7).
Are there alternatives to suing doctors? If financial gain is removed as a motivation for litigation, patients may want to ensure that others do not needlessly suffer their same fate, or perhaps may even wish to punish individuals or organisations (1). In New Zealand and Sweden, for example, where no fault compensation systems operate, openness and honesty is encouraged that should, theoretically anyway, enable wider access to learning points (1).
Irrespective of whether such systems reduce only the cost or numbers of claims, either outcome would certainly be welcomed with open arms in the UK. However, to confound matters there is information from regulators outside the UK that identifies this rise in patient complaints as an international phenomenon: for example in Denmark complaints have risen 88% since 2007, compared with 69% in the UK (2).
Perhaps, using the simplest of analogies, the carrot dangling from the stick may simply be too big and too juicy. Perhaps the absence of Lithuanian whiplash sufferers says it all (3).
*
Quentin Smith (MBChB DA FCA FRCA) is a Consultant Anaesthetist at City Hospitals Sunderland NHS Foundation Trust and author of the well received medico-legal novel The Secret Anatomy of Candles, published by Matador, 2012.
*
(1) Br J Anaes 2012:109(1):110-122 Quality and Outcomes in anaesthesia: lessons from litigation
(2) Medical Protection Society Casebook 2013 vol. 21 no.1 Complaints Culture
(3) Lancet 1996;347:1207-1211 Natural evolution of late whiplash syndrome outside the medico-legal context
(4) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
(5) Bolitho v City of Hackney Health Authority [1997] 4 All ER771
(6) Boston Med Surg J (now the NEJM) 1911;165:406-411 Suits for alleged malpractice
(7) Ministry of Justice 2010; Proposals for reform of civil litigation funding and costs in England and Wales.
(8) N Engl J Med 2006;354:2024-2033 Claims, errors, and compensation payments in medical malpractice litigation.
(9) www.bbc.co.uk/news/uk-england-21243345
(10) Parliamentary and Health Service Ombudsman 2012. Listening and Learning: The Ombudsman’s review of complaint handling by the NHS in England 2011-12
(11) www.bbc.co.uk/news/uk-wales-22215185
