Medical negligence – Don’t take it lying down

The British have a long standing reputation for not complaining; waiting obediently in queues, following instructions to the letter and accepting meekly when it all goes horribly wrong. But when that ‘stiff upper lip’ is not part of our cultural heritage but the result of a botched piece of cosmetic surgery then it’s time we looked again at how we deal with those who do us damage.

Before we look at how to deal with that damage, let’s clear the air on a few issues within the whole area of medical negligence. The majority of doctors and nurses are incredible professionals who dedicate themselves to helping the rest of us to enjoy our lives free from the ravages of illness, accident, pain and the passing of the years. With the growth of popularity of elective cosmetic surgery, many of them are also involved with helping those who are not happy with the cards they were dealt at birth to achieve the confidence that such intervention can bring.

But when medical procedures go wrong they can result in death, disfigurement, disability and a life time of physical and emotional pain. Sometimes things go wrong in spite of all the best efforts of the system, life is after all a terminal condition, but when the root cause of the injury can be traced back to poor management, arrogant or incompetent doctors, or nursing staff who have forgotten why they joined the profession, then it’s time to do something about it. Because if we don’t complain or fight back by challenging in the courts, then it will just go on and more people will suffer at the hands of the few who bring medicine into disrepute.

Recent research shows that most medical malpractice actions are settled out of court; in fact around 95% don’t get the attention of a judge. For the injured party, a financial settlement may help to overcome the effects of the damage, even if they miss their day in court; but they shouldn’t think that that’s the end of the matter. The NHS faced over 14,000 claims in 2012, with over £1bn being paid out in settlements; that sort of money attracts a lot of investigation and helps to focus the microscope on the source of the problems. The insurance companies who actually provide the cash for these settlements are just as interested in identifying the individuals and institutions at fault, so that premiums can be matched to the source of the greatest risk.

So, taking action is not just about money, it’s also about keeping the pressure on the profession and its institutions to self-manage; to prevent the damage before it’s done, to retrain the incompetent, to expel those who don’t care and to make sure there is no systemic excuse for failures. Both the government and the NHS have recognised this, particularly after the damaging revelations in the Francis Report, dealing with the unbelievable failings at the Mid-Staffordshire Foundation Hospital trust. They have brought in global patient safety expert, Dr Don Berwick, to advise on creating a zero-harm culture in the NHS and, because most private practice doctors start out in the NHS, that should gradually permeate the private sector medical industry too.

In this article we provide some guidance on the requirements for a successful action and what injured parties can do to seek justice, compensation and play their important role in improving the safety of care for all.

As the law stands, clinical negligence is assessed against two basic standards.

1. Did the medical professional concerned act in a way that no similar professional would have done?

2. Would the harm not have occurred if that procedure had not been done in that way?

This, of course, is where the injured lay person, or their (possibly bereaved) families can stumble at the first hurdle without experienced and specialist legal advice; how does a non-medic find out what most medics would have done?

The problem is further compounded by the nature of professions; they do have a tendency to look after their own. Until the media furore surrounding the Bristol Children’s Hospital’s maverick heart surgeons in the 1990s, the Mid-Staffs scandal and the encouragement of whistle-blowing since, doctors and nurses had sometimes been complicit in keeping their colleagues’ failings under wraps, possibly in a somewhat naive ‘benefit of the doubt’ approach.

Fortunately the medical profession is finally adopting transparency; some willingly, some being dragged kicking and screaming into the new era, where consideration for the safety of the patient is the only consideration.

For the most part this is not just because of the major headline-generating cases; it is because individuals who have been harmed, or their families, have refused to put up and shut up, but have sought, with the help of expert legal advice, the redress they deserve for their pain and suffering.

They are the real heroes who make medicine safer for all of us.

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