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Medical litigation: what is wrong with the system Anthony Barton is a doctor and a solicitor. He specializes in clinical negligence and pharmaceutical litigation. His e-mail address is anthony.barton@doctors.org.uk All patients injured by negligent medical treatment are entitled to compensation. There must be access to justice. This must be set against the health budget's primary purpose for patient care; conflicting considerations must be balanced fairly. Medical litigation is noted for its expense and delay. There are widespread concerns about the cost and conduct of litigation. There is a concern also that access to justice is limited. Most cases are legally aided; legal aid thus provides the main economic drive for medical litigation. Understanding how legal aid works is the key to understanding the politics and economics of medical litigation. Litigation is attended by risk. It can be a costly business. There are the claimant's own legal costs and his opponent's legal costs to consider. In England the "loser pays" rule applies whereby the loser pays the winner's costs (it does not apply in America where each party pays his own costs). This rule balances the risks of litigation between the parties. It encourages cases to resolve according to their merits; weak cases are abandoned and strong cases are settled. This rule does not apply to legally aided claimants who enjoy costs protection: the legally aided person is in a no lose position and the health service defendant is in a no win position. This means that legally aided cases may be settled regardless of merit to avoid irrecoverable legal costs, a practice described as legal aid "blackmail" in Parliament and by the Bar Council. The legal aid system is biased, unfair and unaccountable. It is biased because funding is granted on the basis of the advice of the applicant's lawyer - a conflict of interest infringing a fundamental principle of natural justice. It is unfair because blameless defendants cannot recover legal costs, infringing the right to a fair trial. It is unaccountable because the reasons for funding decisions (sometimes involving huge amounts of public money) are privileged and confidential. Most people cannot afford legal action. Only a limited number of people are eligible for legal aid. It does not ensure access to justice. Most cases are not successful. Accordingly the relationship between legal action and negligence is unclear. Legal aid does not ensure compensation for deserving cases but provides access to lawyers for those eligible who are able to advance undeserving cases without risk. Lawyers get paid, win or lose. The legal aid system provides incentives for lawyers to give over-optimistic legal advice and to seek out expert opinions to sustain improbable cases. Weak cases are often continued for far too long before being abandoned. Too often lawyers and claimants simply walk away from the wreckage of failed litigation; we pay twice, through legal aid and again by damage to our health service. Too often the only beneficiaries of legal aid are lawyers. Medical litigation is a patient care issue not only because it depletes the health service of resources but also because it affects medical professional practice. Lawyers have little reason to reform a system which serves them so well. It is for the medical profession to seek reform of the civil legal aid system for the sake of their patients. Medical Litigation: how doctors can reform the system People choose to become doctors usually because they care about patient issues and public health. They want to make a difference. Medical litigation is a patient care issue - most doctors are concerned about it but do not believe they can do anything about it. We can, collectively and individually. The facts and arguments are overwhelmingly in favour of reform of medical litigation and legal aid. It is a matter of confronting a powerful and influential legal lobby (and their vested interests) and a complacent government. It is a matter of presenting the arguments in public. So what can we do? Understand how the system works Knowledge is power. Be informed: 1. Get some understanding of the rudiments of law of negligence (fault causing injury). 2. Understand what is meant by no-fault compensation; understand the no fault fallacy - there is a requirement to prove causation so it doesn't really help in many cases; all other professions (apart from judges) are subject to negligence liability so why should doctors be treated any differently. 3. Get some understanding of how the legal aid system works, particularly costs protection; understand the legal aid fallacy - most people can't afford legal action but only a small proportion are eligible for legal aid so it doesn't ensure access to justice at all! 4. Get a feel for the success rates of legally aided litigation; the overall success rates (before investigation), and the success rates of claims that go ahead (after investigation); according to the Legal Services Commission 2003-2004 figures the overall success rate was 31 per cent; the success of cases proceeding the investigative stage was 59 per cent. 5. The litigation system lacks sensitivity: most cases of actual negligence are not pursued. The system lacks specificity: most legal action does not concern actual negligence. 6. The correlation between legal action and actual negligence is poor; the correlation between legal action and legal aid is good. Reform of the litigation system therefore should be directed at legal aid. The favourite slogan of lawyers that if doctors want to stay out of court they should avoid being negligent is untrue because negligence and legal action are weakly related! Be interested. Familiarise yourself with the facts and understand the arguments. Informed participation in debate is incredibly powerful; uninformed participation is not merely intellectually arrogant but also counterproductive. Participate in the debate Raise the profile of medical litigation and present it as a patient care issue. Doctors are individually and collectively hugely influential, and the more so when properly informed: 1. Respond to items on www.bmj.com and in the press. 2. Write letters or articles about medical litigation for publication. 3. Lobby your MP, politicians, the medical royal colleges, the medical defence organisations, the British Medical Association and other professional organisations. 4. Write to the Department for Constitutional Affairs, the government department responsible for the Legal Services Commission. 5. Write to the Legal Services Commission, the body responsible for the administration of civil legal aid. 6. Raise medical litigation as an agenda item at meetings 7. Circulate these materials to colleagues. 8. Be interested. Be informed and stay informed. And finally, thank you for your interest… Anthony Barton Resources Medical Litigation - A Practitioner's Guide Lord Irvine is still learning legal aid Patients Set for Faster and Fairer Damages Making a Claim For Medical Negligence BMA paper on mediation, clinical negligence etc Legal System and Assistance with Costs Funding no fault compensation injuries MPS Response to Legal Aid Commission
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