Lawyers Not To Blame For Spiralling Cost Of Negligence Claims

On Monday 5 February, Clare Foges, one of the regular feature writers for the Times wrote an excoriating piece on the compensation culture in response to a call from NHS leaders to the Justice Secretary to cut the cost of clinical negligence claims.

She has already received a number of replies - some more informed than others. In her column she (rather disparagingly, I feel) refers to the clinical negligence 'industry'. This comment, in itself, reveals the depth of her ignorance about how a negligence claim against a medical professional can be conducted. Through the use of that phrase she channels all the prejudice that is routinely directed at the legal profession for doing a job that helps to keep members of the public safe.

To err is to be human

I completely agree with her that doctors are human and thus fallible. Making an error is, indeed, human and most medical errors do not lead to negligence claims, in spite of Ms Foges' implication that it is only a perfect doctor who has any chance of avoiding a claim being made against them. The reason for this is the number of very high hurdles that have to be jumped in order to establish that a negligence claim exists. The test is a relatively simple one, but very hard to prove: it amounts to what an ordinary doctor would do given the same circumstance. So, if a body of ordinary medical opinion considers that the doctor's actions are exactly as they would have done themselves, then there is no case to answer. Doctors are judged by the standards of their own profession, and not by lawyers.

Errors do not automatically equate to negligence

If doctors are practising defensive medicine with 'the sword of Damocles tickling their scalps' then they clearly do not understand the principle of peer opinion either. There are many excellent, dedicated doctors who regularly make judgments based on their experience; very occasionally they will make a wrong call resulting in a tragic outcome. But this does not mean that they will be sued - in the vast majority of cases, they will not - there will be no case to answer because a reasonable body of medical opinion will concur that they would have made a similar decision. Where negligence claims will succeed is where the reasonable body of medical opinion agrees that the action taken was not of the standard expected.

Encouraging a culture of openness, to which Ms Foges refers, is essential but, in my experience, it remains more principle than practice. I...