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See you in court, doctor

MagazineFebruary 1991 (Vol. 1 Issue 11)See you in court, doctor

As readers of WDDTY are only too well aware, doctors in the main don't like to be challenged, and they certainly don't like admitting their mistakes

As readers of WDDTY are only too well aware, doctors in the main don't like to be challenged, and they certainly don't like admitting their mistakes.

If you suspect that you or a member of your family has been damaged because of a doctor's incompetence or negligence, and you want to do something about it, you'd better prepare yourself to enter a legal and emotional minefield.

Doctors have the backing of a powerful medical establishment fully geared up to protect its own and to put obstacles in the way of anyone asking awkward questions about what went wrong and why. As a patient, you don't even have the right to look at your own medical records.

You will need to be determined and to make the most of the experts and other bodies around who can help you. If you are to have any hope of compensation for your injuries, you will need to show that your doctor's actions were to blame and that his actions were negligent. No blame, no compensation - regardless of how much you have suffered.

The first thing to realize is that there's no such thing as a clear-cut case. 'The dividing line between those who fail and those who succeed is finely drawn,' says medical negligence solicitor Bill Message. The court will often have to choose between the contradictory views of two different expert witnesses in deciding whether the doctor was at fault and, therefore, whether compensation is due.

'In medical mishaps, there is almost always an innocent victim,' says Message. 'But unlike, say, situations where a car has collided with another, a passenger will almost always be able to claim compensation from one or another driver. But in medical negligence, sometimes you simply cannot prove who was at fault.'

Medical negligence is defined in law as the failure of a doctor to reach the accepted standard of medicine. Who decides what is the acceptable standard? Other doctors, naturally. If 'a responsible body' of medical people conclude that your treatment was reasonable then you cannot claim damages. On the plus side, medical negligence is not limited to explicit acts. It includes anything that may have led to damage, such as a misdiagnosis or a GP failing to come out on a home visit. One of the hardest parts of getting wrong treatment put right is getting confirmation that something has indeed gone wrong. Some medical mistakes, such as amputating the wrong leg, are easy to spot. But most slip-ups manifest themselves more slowly and subtly so that the problem may become clear only at the point where the damage is irrevocable.

Leading medical negligence solicitor Robert Wicks has handled hundreds of cases for patients over the last 10 years. In his view, the patients who have the greatest chance of success in litigation are those who've taken what he calls an 'intelligent interest' in their treatment long before any hint of trouble.

What this means, in effect, is that you must treat every last bit of medical advice as potential evidence in a malpractice suit. If all this sounds unreasonably combative, particularly against that nice doctor who was only 'doing his best', remember: you are a consumer who purchased services (even through the NHS) that have gone - or may go - wrong. You have a right to compensation. A sum of money won't make the pain and suffering go away, but it may go a long way toward paying for any nursing or home help care you need as a result of being damaged. More importantly, if enough doctors are called to account for medical mistakes, it may cause the health authorities to reform some of those practices - like putting too junior a doctor in charge, maintaining 100-hour rotas or being too quick with the surgery scalpel - that contribute to mistakes in the first place.

Furthermore, mistakes are more common than you realize. According to the results of two large American studies of hospitals, about one in 25 hospital patients is harmed, and about one-fifth of hospital deaths are caused by something going wrong. Negligence is responsible for about one-quarter of these cases. Although a similar study has never been done in Britain, the Confidential Enquiry into Perioperative Deaths, a voluntary survey, found that the surgery itself caused 7 per cent, and the anaesthesia, 14 per cent, of deaths. If we extrapolate the American figures to British hospitals, said the British Medical Journal in a recent report (and there's no reason why we can't as things aren't done very differently over here), that would mean that 300,000 patients are harmed in hospital, 45,000 of whom die as a result every year. Some 75,000 of those cases are due to negligence.

Whenever you go to your doctor, it's vital that you keep your own written record of the treatment you are getting. Make sure to ask your doctor to explain in detail what you ought to expect. If you are forewarned, you will not only avoid unnecessary anxiety but also realize immediately if all is not well.

Keep the lot numbers of any drugs that you are taking. Get your doctor to spell the names of any unfamiliar drugs, tests and procedures. Do your own research before the treatment begins, particularly if you're not happy with your doctor's explanation. Visit your local library - or even the hospital library - to look up information about your treatment. If your doctor tells you that you're making a fuss over nothing when you complain about great pain or discomfort after treatment, contact the Medical Advisory Service (10 Barley Mow Passage, Chiswick, London W4 4NJ. Tel: 081-994 9874).The nurses operating the telephone will instantly advise you how you should be feeling one week or one month after, say, a hysterectomy. This 24-hour helpline can explain how to seek a second opinion or how to find your way round the services offered by the NHS.

Wick's very unlawyerly advice, borne of experience, is to trust your instincts. If you are convinced that something is wrong - and you're not impressed by your doctor's assurance - there's a good chance that you're right. Mothers, for instance, invariably know more about their children's true condition than do even the best pediatricians. Once the alarm bells start ringing, keep a diary of your treatment and condition. This would include a record of dates and times of treatment and who gave it. Get witnesses, such as visitors and family, to write down how you (or whatever patient you're monitoring) appear at various stages. Were you in a confused state? Obviously in pain? Having trouble breathing? In some cases, it may be appropriate to take photographs in order, say, to show that a wound became infected after an operation. The more evidence you amass, the more likely that the hospital will take your complaint seriously and you will get to the bottom of what happened.

If at the outset you decide that you want financial compensation for your injuries, your best course may be to contact a solicitor without delay. However, the first thought of most victims of medical negligence (at least in this country) is not for money so much as for an explanation, according to patients' charity Action for Victims of Medical Accidents. They want to know what happened to them, why it happened and whose fault it was.

The government has laid down a three-part complaints procedure for health authorities in respect of National Health Service patients. You may well want to try this first before resorting to the law. Just bear in mind that like anyone else with the finger pointed at them, many doctors and hospital workers will first try to protect their own positions, not to satisfy your need for information. Be sceptical of any explanation which sounds fantastic.

Mr. L, for instance, attended his local hospital in 1987 for an operation on his mouth to remove a stone from his salivary duct. The surgeon wrongly removed the salivary gland, leaving the stone behind in the duct. He also damaged the lingual nerve on one side of Mr L's tongue. When Mr L complained, here is the written explanation he received from the hospital: 'The stone was originally in the salivary duct, but as the operation commenced, the stone slipped out of the duct into the gland and it was for this reason that the gland was removed. But while the gland was being removed, the stone must have popped back into the duct again, undetected by the surgeon. The lingual nerve was damaged simply because it lies so near the salivary duct and glands.'

In Roger Wicks' experience, hospitals begin to take complaints seriously only once a writ has been issued. Before then, they are only interested in getting an awkward patient off their backs.
If you believe that your doctor or hospital has made a mistake, your first move is to make an informal complaint. If you are still in hospital, you can do this verbally by arranging to speak to a senior member of staff, the staff nurse, sister, your consultant or even the hospital administrator. If this discussion doesn't clarify things, very likely you will need to go onto stage two, which is to lodge your complaint in writing to the senior staff member responsible for investigating complaints.

In most cases, this should be done within a year of the incident. Bear in mind, however, that the health authority has full discretion as to whether your case merits investigation. And some authorities will try to avoid looking into things unless you make an immediate complaint. In its leaflet 'Not Satisfied? A Guide for Patients', Bloomsbury and Islington Health Authority asserts: 'If you take longer than three months [to complain] your concerns may not be investigated unless there is good reason for the delay.'

In your written complaint, support your case with as much information as possible -including copies of photographs or any other material evidence. If the officer in charge sees fit to pass it to the final stage, this involves a hearing conducted by the director of public health and two consultants independent of both your hospital and the health authority.

One word of warning. Before the hearing, you will be asked by the health authority to sign a declaration stating that you will not take subsequent legal action. As the authorities well know, this kind of declaration is not worth the paper it's written on. All that it's intended to do is to deter the unwary from mounting a lawsuit.

AVMA, which has helped thousands of victims of medical accidents, advises clients to go ahead and sign the declaration. 'This has no basis in law and will not later affect your right to take legal action,' according to an AVMA leaflet. If, however, the authority asks you to swear an affidavit to that effect, head straight to your lawyer for advice. If you do get as far as a hearing, you are entitled to attend it. Afterward, you will receive a report of what was said and any action to be taken by the hospital or doctor. If you are not satisfied at this or any other stage of the complaints procedure, don't hesitate to seek legal advice.

Private patients must take a different route. In private medicine, the contract is between you and the doctor, not the health authority, so the complaints procedure will not apply. Basically, you've got two courses of action: you can contact a solicitor about making a claim for medical negligence, or withhold payment for your treatment. If you're paying for treatment yourself, withholding payment means, of course, simply not paying. But if you're being funded by a private insurance scheme, you should ask the company to send payment direct to you rather than to the hospital, before receiving your treatment. If you do withhold payment, the hospital will very likely try to sue you for its costs. In order to defend your decision not to pay, you will need to prove that the treatment was negligent or that there was a breach of contract. Again, contact a solicitor.

Finding the right solicitor is your next problem. Do not go to your local high street firm, the firm you used for conveyancing or even the firm that handles your business matters. It's essential to find a solicitor who specializes in medical negligence. This is far more difficult than it should be - and likely to get more difficult. For one thing, the Law Society, the professional body representing solicitors, cannot recommend particular firms under existing rules. You will simply be given the names of three solicitors in your area, chosen at random. This is despite the fact that the leading medical negligence firms are well known to them and the society acknowledges that it is in the patient's interest to go to a specialist. You will get a similar response if you contact the Legal Aid Board, the body which administers the legal aid scheme.

Perhaps the best referral may come from AVMA, a charity with no official status dependent on voluntary contributions, which set up a panel of some 40 approved solicitors from private firms around the country. (Bank Chambers, l London Road, Forest Hill, London SE23 3TP Tel: 081-2912793). These are individuals whose knowledge and experience in medical negligence work has been thoroughly vetted and approved by the organization's medical and legal experts. AVMA also operates a lawyer's service, which currently has some 700 members and provides law firms with the information and resources they need to run medical negligence cases.

Most important of all, AVMA has collected a pool of sympathetic medical experts who are prepared to give evidence in negligence cases. Traditionally, a major problem for solicitors has been the reluctance of doctors to testify against their colleagues. A specialist solicitor like those on the AVMA panel will know how to get full disclosure of your medical records, how to find the right medical expert to give evidence on your behalf, and how to get around the stalling and blocking tactics used by the health authority.

The Law Society is, belatedly, planning to set up its own panel and vetting arrangements next year. However, under another rule change agreed by the society, for the first time law firms will be able to proclaim themselves as specialists in particular areas of law. This means they will be able to advertise their speciality without having to go through an external vetting or approval procedure. This decision has been condemned by the National Consumer Council as 'highly retrograde'. In their view, all it will mean is more work and less protection for the patient.

Once you find an experienced solicitor, he will take a detailed account of what happened. At this point, any evidence you have amassed will help him to reconstruct events. He will send the information to an independent medical expert who will prepare a report. The cost of preparing the report and seeking a barrister's opinion on whether a case would succeed can be as much as lb2,000. Medical negligence litigation can be terrifyingly expensive and cases where people have been forced to sell their homes are well documented.

Since April, all children have been eligible for legal aid as their financial situation is no longer assessed in terms of their parents' incomes. On the other hand, fewer and fewer adults now qualify. One solicitor told WDDTY that health authorities can try to stare down complainants whom they know are funding their cases privately. It takes a strong constitution on the part of the solicitor to take on a privately funded medical negligence case, he said.

There is some light on the horizon, however. The Courts and Legal Services Bill, which got the Royal Assent last month, opens the way for contingency fees next year. This means that, for the first time, solicitors will be able to take cases on a no-win, no-fee basis. Bear in mind that solicitors are not in the charity business, however, and they will want to do this only with cases they are confident of winning. How much of an assertive patient you've been - that is, how much intelligent interest you have in your treatment - could be the deciding factor in whether a solicitor takes you on. The more evidence you've been able to amass at an early stage, the more likely it is that you will find a solicitor to take up your case.

AVMA for one is also lobbying to change the attitude of healthcarers towards accidents. It hopes to see new procedures for investigating complaints, disciplining errant doctors and compensating victims. In this regard, we might take the lead from the Americans. The US has passed a law mandating The National Practitioner Data Bank, a database which lists all the doctors in the States who have had to pay out malpractice suits or in some way had their privileges suspended for more than 30 days. This is invaluable to hospitals and has been hailed by the American Medical Association as a landmark in peer review. The only catch is that, as usual, this information isn't available to the public. Perhaps some day they - and we - may be able to find out which doctors have a history of making mistakes so that we don't become their latest victims.

In the meantime, use the medical diary at the bottom of this page every time you see a doctor.

Fiona Bawdon
Fiona Bawdon writes for The Lawyer, a specialist magazine for the legal profession.

Your name: Address: Date:
Doctor and/or hospital: Address:
Your complaint:
Your doctor's questions and comments:
Your responses:
Tests ordered (and dates):
Drugs prescribed (and your doctor's or pharmacist's instructions):
Surgery recommended (and reasons why):
Treatment prescribed after drugs or surgery:

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