Doctor in the Dock

Stephen Sedley

I used occasionally to lecture to doctors at the Institute of Orthopaedics on giving expert evidence. With a hierarchical propriety that would have done the legal profession credit, the audience would arrange itself in order of seniority, consultants in the front row, registrars behind and so on. The occasion I enjoyed most was when I stayed to listen to the next lecture, ‘On Alleged Medical Negligence’, delivered by George Bonney, a laconic orthopaedic surgeon with long experience on the governing body of the Medical Defence Union. His tongue-in-cheek thesis was that the invention of penicillin had been a disaster for doctors, who until then had been unable to cure much other than malaria and syphilis (‘and nobody was going to get up in court and say: “That man failed to cure my clap.” ’) Where once the profession’s main therapeutic resource was the bedside manner, and the patient’s principal response gratitude, Bonney argued, people now expected to be cured and would sue if they were not.

The argument rang true. One has only to recall Ernest Shepard’s drawing for

All sorts and conditions
   Of famous physicians
Came hurrying round
   At a run

to be reminded that tailcoats, boiled fronts, half-glasses and gravitas were, until not long ago, far more useful than what was in the doctor’s bag. Molière, asked by his doctor how he could return a favour, had been able only to suggest that his doctor might let him live a few more years. It was Molière’s Sganarelle, too, who, when reminded that the heart was on the left and the liver on the right, replied, ‘Nous avons changé tout cela’ – a slogan, possibly, for the new NHS.

Bonney’s chapter in this ambitious book is again good value. (It is not easy to say the same of the book itself, which despite its enormous price, opens with a ringing quotation from which a word has been omitted, and on the next page cites a non-existent judge.) He writes knowledgeably and elegantly not only about his ostensible topic, the two great medical defence organisations, but about the revolution which during the past sixty years, starting with the development of sulphonamides in the Thirties and penicillin in the Forties, has taken medicine from a situation in which ‘diagnosis ... depended largely on clinical acumen [and] treatment was almost entirely a matter of suggestion,’ to the contemporary expectation of universally accessible diagnosis and of treatment to legally underwritten standards.

The central belief of the founders of the [National Health] Service, that costs would fall as the health of the population improved, was shown to be untrue. Instead, costs rose progressively as more conditions became treatable, as expectation of life increased, as methods of treatment became more expensive, as pay was increased and as more staff were employed. The change in the relation between patient and doctor began in the Sixties and Seventies to influence the readiness of patients to sue doctors. At this time, too, the effects of the availability of Legal Aid started to become apparent.

Bonney is right; in this compressed history we pass through the gateway to contemporary litigation, to flag the continuing need for doctors and nurses to nurture and reassure in ways of which the law should ideally know nothing but which today also lie within its grasp. Correspondingly, a good half of this book is devoted to chapters by leading medical practitioners on the legal dimensions of their specialities. If I do not dwell on these – and they are as fascinating to the lay reader as any afterdinner conversation with a captive doctor – or on the equally absorbing chapters on epidemiology and on Scottish and American litigation, it is because they are in the end individual windows onto the courtroom, and it is in the courtroom that the drama of clinical medicine is succeeded by the soap opera of the law.

When diagnosis or treatment go wrong, not everybody reaches for their solicitor. A.J. Davison, a hospital manager, estimates alarmingly in his chapter that ‘there is probably a far greater number of dissatisfied patients who could sue but who do not, than the numbers who actually do take legal action.’ He may well be right: he is certainly right to suggest that most people in this situation want not revenge or money but a truthful account of what has gone wrong and what is being done to put it right. Litigation is often the resort of the terminally frustrated. But Davison also paints a troubling picture of what routinely generates medical accidents in the NHS: inadequate staffing levels, lack of equipment and facilities, the use of under-trained personnel, growing reliance on locums and agency staff, confusion of policies and procedures and lines of responsibility and communication. These are not all inherent hazards of large organisations, but all of them can and do generate what the Americans call malpractice litigation.

Davison says the best defence against such claims ‘is to develop an effective clinical audit process.’ His own definition of clinical or medical audit, although he himself calls it too simplistic, is useful: it is to assess the effectiveness of what clinicians are doing, while resource management concentrates its the economic efficiency. Davison regards these as ‘different angles on a common theme, that of improving patient care’; but there are many clinicians who would put the difference at 180 degrees. Bonney, for example, looks at the aftermath of the Griffiths report on Community Care: the clinical audit showed that patients were being unnecessarily kept in institutional seclusion, but resource management did not, he contends, furnish the intended alternative:

discharges from mental hospitals and long-stay institutions began long before the proposals were implemented in April 1993; the funding of [local] councils was barely adequate to sustain the new responsibilities. In consequence we have seen the aged, the infirm and the mentally unstable walking the streets and sleeping in doorways; we have seen large profits made by private contractors offering inadequate residential care; we have seen deranged patients, discharged into an uncaring community, damaging themselves and others.

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