We doctors live in daily fear of being sued. But that is only one side of the story. On the other side is the lot of the sensible patient or relative who genuinely believes that “something went wrong that should not have gone wrong”, but who faces the daunting task and uphill struggle of mounting a claim for negligence. His or her daily fear will not be one of being called to court, but quite the opposite, of ever getting the claim off the ground in the first place.
Even when the claimant has a genuine grievance – we are not talking about malicious or vexatious claims here – the odds are stacked in the doctor’s favour. The essential facts and understanding of the case will lie in the medical arena – which is a turf we doctors naturally understand, and which is familiar to us. We – sometimes, but not always, because they can be fickle in who they choose to support – will have the support of our professional defence society. And, more often than not, we will have the support of colleagues, as ranks close, lest the hoppers open and the fan start to turn.
The lot of the aspiring claimant could not be more different. She – let’s make it a she, because women tend to be less confrontational than men – faces such steep barriers in the way of even getting her claim off the ground that it is a wonder that any claim ever makes off the starting block. Let us consider those early barriers.
The first barrier is indeed steep, but private. The sensible claimant, being sensible, will naturally want to trust doctors, and yet everything she sees before her tells her she must abandon that trust, and entertain a belief that those whom she would prefer to trust are no longer trustworthy. That, for the sensible individual, is not a trivial step, and should not be sniffed at.
Our claimant’s next barrier will be to persuade a solicitor that there is a case to answer. Many jobbing solicitors, however, will be out of their depth in medical matters – and so will be less open than they might be in simpler matters, to persuasion that there is a case to answer. But let us say that our claimant is articulate, and her claim falls on sympathetic legal ears; and her case is taken on.
The solicitor will then obtain the medical notes – a process that is often tortuous, protracted, and incomplete. Unfortunately, our solicitor, who is now privately minded to view the claimant as even more medically ignorant than he is – and so gives her little weight in medical matters – finds that he is further handicapped. The medical notes make no sense to him: reading them makes about as much sense to him as reading tea leaves. And so he will need to make use of expert medical opinion, to translate the tea leaves into something more useful.
Our solicitor must now cobble together questions about something he doesn’t really understand – the nature of the claim, based on instructions from someone he doesn’t really believe – the claimant, and present them to someone he doesn’t really trust – the expert, but who – and this is one of the few facts on which the solicitor can rely – will charge £150/hour for his expert medical opinion.
The expert is, of course, in this for the money – which is fair enough – and so will limit his assessment of the medical notes to questions raised by the solicitor. But, as we have seen, a fog is already upon our solicitor, who has, as a result, asked the wrong questions. The expert, in turn, reads the wrong tea leaves, and so gives (let us hope) the right answers – but to the wrong questions. The fog remains, and no progress is made.
And so further instructions and opinions pass backwards and forwards, with expert costs now in thousands of pounds, and yet the fog refuses to lift, and the tea leaves fail to give up their secret; and so the claim stalls. According to DAS, the leading legal expense insurers, 80% of medical negligence claims get no further than the initial solicitor, because no one is able to make sense of the medical notes.
Remember, these are not malicious or vexatious claims, but sensible articulate claimants with genuine grievances. What about those claimants with no less genuine claims, but who are less well placed to understand the system, and how it works? How much harder must it be for them?
These genuine claimants are being failed by our legal system. While that may be bad law, rather than bad medicine, the result is that many doctors practicing bad medicine are not called to account when they most certainly should be.