HEART BEAT:Legal proceedings are traumatic for patient and doctor, writes MAURICE NELIGAN
ROBERT PEEL, when British home secretary, said he believed that “legislature was animated by a sincere desire to frame its legislation upon the principle of equity and justice”. He didn’t mention common sense. Edmund Burke did: “It is not what a lawyer tells me I may do; but what humanity, reason and justice tells me I ought to do.”
Leaving aside humanity for the moment, reason and justice do not necessarily go hand in hand. Many of you are aware of the Stella Awards, named after an 81-year-old lady who purchased a takeaway coffee at a McDonald’s restaurant in New Mexico. She removed the top, placed the hot coffee between her thighs and drove off. A sudden stop and she was scalded. She successfully sued McDonald’s.
The eponymous awards are given yearly to similar claims which seem to flout reason, whatever about justice. There is now a dedicated website, www.stellaawards.com, which details similar departures from the pathways of common sense into the lush pastures of litigation.
American medical practitioners have long and bitter experience of vexatious litigation. This in turn leads to the practice of defensive medicine and escalation in medical costs. It leads to unnecessary admissions and superfluous investigations, and the squandering of resources needed by those really ill. It generates high medical insurance cover for doctors and this, in turn, is passed on to patients. Common sense dictates that this is not a good thing.
It couldn’t happen here? We are a litigious race and we doctors know that well. A glance at the newspapers when the courts are in session shows doctors as defendants in cases of alleged “medical negligence”. That is the tip of the iceberg. Many cases started are not pursued, due to the intrinsic weakness of the case; paradoxically some of the most serious and well documented are settled before court appearance.
Medical litigation is a growth industry. It was rare in my early years in practice. People then were inclined to believe that doctors did their best and the doctrine of stercus accidit was widely accepted. Times change, however, and nowadays doctors in many disciplines can expect to be sued in the course of their professional lives.
Whatever the merits of the case, it is a stressful time for the doctor. Presumably, it is also so for the litigant. The only folk who seem to remain unperturbed throughout the procedure are the lawyers in serried ranks on either side.
Out of a clear blue sky, often just before Christmas, when you are at peace with the world, a serious-looking letter arrives for you. It is from Messrs Poxe, Boggle and Mynde, solrs. You read on, assuming that they require a legal report or an expert opinion on another case. Then the penny drops – some ******** is suing you and the red mist descends. Often the name means little to you and you cannot remember the incident complained about. However, the letter is full of bonhomie and good cheer: “Wherefore you did maim and mangle our client Mr/Ms X by your incompetence, negligence and general failure of care, we require you immediately to acknowledge your woeful treatment and make due reparation to our client. We might add that before your crude intervention, our client could climb mountains, run the marathon, was a member of Mensa, had an active sex life and made millions. Since you laid hands on him, he is now a quivering wreck.”
You obtain the chart and your staff tell you that’s the 90 year old in extremis you didn’t want to operate upon, and who you were so pleased to have clawed back from the brink of the tomb.
Full of fury, you contact your defence lawyers, Messrs Calm and Serenity, and demand that we immediately counter sue. They tell you not to worry about the flowery allegations, “that’s only lawyer-speak and what’s more it’s privileged, and any further allegations are to be ignored also”. Soothingly, they tell you not to worry, they will hold your hand over the next 10 years or however long it takes. It’s out of your hands, so get on with your life and maim a few more.
A single magpie has nothing on a solicitor’s letter. Some of my best friends are solicitors. All the above, of course, is related “without prejudice”.