Rethinking Clinical Negligence...again
If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture.
This is the first of a few posts on the recent Commons Committee report – The Safety of Maternity Services in England –
The report includes a section headed – Rethinking the current approach to clinical negligence.
I have to confess to feeling an instinctive sense of unease when politicians talk about ‘rethinking’ or ‘reform’. It rarely ends well.
The report starts out by referring to cost – “Staggeringly, the £1bn paid out in maternity compensation in 2018/19 was nearly twice the wage bill for all of England’s obstetricians and gynaecologists combined”. This is indeed an alarming figure. But we cannot lose sight of the incidents which are leading to these payments. They will not go away just because the system is changed. The report subtly shifts responsibility to claimant lawyers and to victims themselves – “Even more concerning is how much of this rising bill goes on lawyers’ fees” In fairness the report acknowledges the need to learn from mistakes, but the body of the report is not encouraging. In particular we meet a familiar villain – ‘blame culture’.
The report talks of ending this culture. It discusses the problems of ‘compensation based on finding fault.’ This is based on the false assumption that damages claims that arise from negligence in a clinical setting are somehow different from those arising in other contexts. The law of Tort in this country has developed over many years. The law of Negligence has developed within this. As long ago as the 1930s there was a classic legal case, familiar to all first year law students involving a snail in a bottle of ginger beer. Lord Atkin gave us a quote that has underpinned negligence claims –
‘The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’*
In other words, if you owe me a duty to take care, if you fail in that duty and I am injured as a result, you (or your insurer) must pay me compensation. This has become such an accepted part of our world that we rarely think about it. If your accountant is negligent and you lose money you expect to be compensated. If your lawyer is negligent and you lose money you expect to be compensated. If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture. This is the danger of focussing on one are of life and treating it differently from others, for political reasons.
The report mentions a ‘new’ approach based on what is avoidable and refers to the experience in Sweden.
This risks setting aside decades of jurisprudence for the sake of political acceptability. The current system of clinical negligence, developed by judges over many decades has given us a strong foundation that has been capable of adapting to change. Two examples come to mind –
1. Informed consent. A medical practitioner can only interfere with my body if I consent. In order to give that consent, I must be properly informed. I must know the risks and benefits. For many years, the medical profession decided what information I should be given. In a case called Siddaway v Board of Governors of Bethlem Hospital **, Lord Diplock said – “To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.” By 2015 society had changed. In Montgomery v Lanarkshire Health Board*** the Supreme Court confirmed this in a strongly worded judgment. This was a case about risks and benefits of caesarean section delivery in the case of a mum with diabetes who had a large baby. There was a risk of shoulder dystocia which can be catastrophic. The treating doctor explained why she had not discussed the matter - “since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didn’t raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today.” The lower courts were bound to follow the Siddaway principle. The Supreme Court took the opportunity to bring the law into the 21st Century – “A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being” – Lady Hale. This is an example of how our common law has been able to adapt in order to reflect modern thinking.
2. Damages. In 2002 Patricia Briody brought an action against St Helens and Knowsley Health Authority**** having lost her fertility due to their negligence. She wanted to recover the cost of a commercial surrogacy arrangement in the USA and to use donor eggs. That part of her claim failed. A commercial surrogacy arrangement was illegal in this country. In 2021 the Supreme Court allowed similar arrangements. Society had moved on. The arrangement was perfectly legal in California. Lady Hale observed that the persuasiveness of Briody had been mitigated by - ‘subsequent developments in the law and social attitudes relating to surrogacy’*****
These are examples of the way in which our law of negligence has grown and developed in a way that properly compensates victims and has reflected changes in and value of society. It is a backwards step, to take clinical negligence away from that whole body of law and introduce a entirely new concept of avoidability. That would also leave us in the strange situation where some jurisprudence applicable to clinical cases could apply if you were suing your financial adviser but not if you were suing your doctor.
It is healthy to learn from the experience of other countries. But they have their own history from which their approach has developed. There is room for improvement. But we have a long and detailed history that cannot be cast aside just by calling it a blame culture.
I will discuss this in later posts. The report also includes worrying comments on how damages for care and for loss of earnings are calculated. Watch this space.
*Donohue v Stevenson  AC 562
** Siddaway v Board of Governors of Bethlem Hospital  AC 871
*** Montgomery v Lanarkshire Health Board  UKSC 11
**** Briody v St Helens and Knowsley Health Authority  EWCA Civ 1010
**** XX v Whittington [2020 UKSC 14