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.

The importance of clinical audit, considered on its own, is nevertheless considerable. In a system of professional governance which, for the rest, is geared only to damage limitation and the remedying of disasters, it represents the best hope of avoiding litigation, not by the time-honoured devices of closing ranks and withholding information but by anticipatory planning against the occurrence of mishaps. It needs to be remembered that medicine, like the legal process, does not guarantee to get everything right – only to do a competent professional job. Failure after doing the best that can be done with the available resources is not negligence. It is above all failure to address problems until a patient is dead or disabled, and a complaint is on somebody’s desk, which leads to malpractice litigation on the institutional level. But litigation is not by any means the only form of recourse, and in many situations it is the worst, locking the patient or the family into years of anxiety and uncertainty.

The book traces the heterogeneous and sometimes byzantine procedures and agencies through which questions can be asked and complaints pursued and (sometimes) compensation obtained without going to law. Arthur Taylor’s useful essay contrasts the reasonably swift and productive hospital complaints procedure with the often complicated and frustrating family health service procedure when the complaint is against a GP. He looks also at the Health Service ombudsman, whose remit covers service failures and maladministration; the General Medical Council, which can discipline doctors for serious professional misconduct; and the Patient’s Charter, which, though hortatory only, sets standards for administrative response to concerns and complaints – which in many cases is all that a distressed and confused patient or relative wants. Taylor is followed by Arnold Simanowitz, whose concern is to use the formal complaints channels to obtain evidence for use in court; and by Paul Knapman, an experienced coroner, who describes carefully the powers and procedures of his office – a useful source of evidence for lawsuits and often the only formal inquiry into a iatrogenic death – but omits to mention that an inquest verdict is not even prima facie evidence of the cause of death in a court of law.

Beyond the institutional level lies the personal liability of every medical practitioner to diagnose and treat to a proper standard, whatever the institution in which they practise. Increasingly, this standard is having to adapt to notions of informed consent. Ernest Shepard’s portly practitioner is unlikely to have sought the informed consent of either Christopher Robin or his parents before he gave him what goes for a cold in the nose and some more for a cold in the head. Nor, probably, would he have done so before performing a tonsillectomy (which may be why a whole generation has been pointlessly deprived of this inoffensive organ), or possibly some more drastic excision. The courts of this country have so far leant in the same direction, holding that ‘what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice ... must primarily be a matter of clinical judgment.’ Other Commonwealth courts have taken a very different line, and in their chapter on the general law of medical negligence John Finch and Robert Cowley (respectively an academic and a practising lawyer) commend them for doing so. The Canadian Supreme Court has pointed out that what is a reasonable risk to a doctor is not always so to the patient, and that to allow medical judgment alone to determine disclosure of risk is to rob the patient of the protection of the law. In Australia, the point has been vividly illustrated by a recent case in which a patient who had been almost blind in one eye since childhood let a surgeon operate on her bad eye without warning her that there was a 1 in 14,000 chance that it would damage the good eye by causing sympathetic ophthalmia, which is what developed. To the surgeon the risk was negligible; to the patient it was critical, and she recovered damages because the court held that the patient’s and not the doctor’s appraisal of the acceptability of risk counted and that, told of the risk, she would have declined surgical intervention.

Research has produced remarkable figures of risk acceptability: people will accept high risk levels – for example, the risk of death or injury every time they drive a car or light a cigarette – if they believe they are in control, but will reject remote risks caused by the activities of others. If a risk acceptable in medical terms is nevertheless unacceptable to the patient, the law is presented with a policy choice in which individual autonomy, idiosyncratic and sell-harming as it can be, competes with professional judgment, with its capacity for everything from paternalism to gross error. As Sir Henry Brooke (a judge) and Anthony Barton (a doctor and solicitor) point out in their chapter on consent to treatment, the stance adopted by any legal system at any point of time represents a choice, spoken or unspoken, between paternalism and consumerism. But while they rightly suggest that most such judgments are properly a function of medical ethics rather than law, it is the law which holds the ultimate power to determine where the territory of medical ethics ends and the realm of the insured risk begins.

The difference in levels at which medical negligence can occur, as the book’s opening chapter explains, is of key relevance. Once an individual is qualified and practising, the law sets an objective standard of care which must be observed, whatever the institutional context. It measures that standard principally by current medical knowledge and practice, accepting that dissent within the profession cannot by itself outlaw methods which a respectable segment of the profession endorses. The leading case, decided nearly forty years ago, was a claim for damages brought against a psychiatrist and his NHS management committee for using ECT on a voluntary patient, who suffered bilateral pelvic fractures when he was made to convulse without relaxant medication or physical restraints. The jury (in those days juries still decided such claims) decided that there was sufficient responsible medical opinion supporting the use of ECT in this manner to protect a doctor who used it, even given the attendant risks. More recently, however, the courts have added a significant rider: that it is open to a plaintiff to attack such conventional wisdom as itself unjustified. In a field of activity where the inertia of centuries has given way to exponential development, this opens up a series of contradictory prospects. There is everything to be said for refusing to let doctors continue with practices which have been superseded and create now unacceptable risks for their patients. There is less to be said for inhibiting doctors from trying new methods for fear of lawsuits; but between true pioneering and human experimentation is a line which, though legally absolute, is forensically and ethically indistinct. To adjudicate in such a case ineluctably turns the courts into arbiters of medical controversies. To differentiate between the medical practitioner who has made an educated choice to stick to a known but suspect procedure and one who is too professionally inert to think or to change at all is hard enough; but to decide when a practice, though accepted by a body of medical opinion, is either obsolete or unproven, or whether a doctor has fallen below an established standard of care, calls not only for judgment but for information on a grand scale.

It is to these and similar ends that experts enter the witness box in medical negligence actions. There may anyway be a need for specialist evidence about the plaintiff’s condition and prognosis in order that damages can be assessed; and there may also be questions of aetiology if there is an issue as to whether the plaintiff’s condition was actually brought about by the negligence which is alleged. But logically antecedent to all these is the question whether the doctor or the institution being sued was guilty of professional negligence at all, and on such an issue the courts can neither do without the help of experts nor abdicate to them. The need for expert evidence in such situations has been accepted for centuries. ‘If matters arise in our law,’ said Mr Justice Saunders in 1554, ‘which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns.’ But at the back of the modern use of expert evidence there remains an antiquated positivism which takes all facts to be ascertainable and all competent scientists to be capable of ascertaining them. The idea that fact itself is elusive still struggles to find a place in legal reasoning, which clings to the old judicial dictum that the state of a man’s mind is as much a fact as the state of his digestion. But in court the state of a man’s digestion is only as ascertainable as expert evidence makes it, and experts – like lawyers – can put up a convincing case for almost anything. The inducements to lean one way are recognised by lawyers and doctors alike. An Early Victorian law lord, Lord Campbell, included even ‘respectable witnesses’ in the temptation to slant their evidence as experts. True, the case recalled by a Master of the Rolls a few years later, in which one side had obtained 68 experts’ reports before finding a favourable one, speaks well for the body of experts who would not bend; but it illustrates a second serious issue: a party with enough money and tenacity can eventually find an expert to swear to almost anything.

At its worst, no doubt, we are talking about moral and intellectual dishonesty. As a junior barrister I attended a conference with a doctor who gave evidence frequently and who began by asking what we wanted him to establish. The QC who was leading me told our instructing solicitor to get rid of him. (I have since wondered whether it was the doctor or the lawyers he had been instructed by who bore the responsibility for his standards.) Now in ethical terms there is all the difference in the world between such an expert and one who, knowing what his client’s case is, does his honest best to be objective about it. But in practical, psychological terms the difference is not necessarily great, and Anne Winyard’s chapter on the preparation of medical evidence perfectly illustrates why this is so. Her appendix includes a specimen letter of instruction to an expert:

I am investigating on mother’s and son’s behalf medical negligence claims against Border Health Authority ... I am writing to ask you if you would be prepared to assist me with mother’s and son’s cases ... Our allegations so far as son is concerned are that mother’s labour was mismanaged and indications of fetal [sic] distress disregarded ... On mother’s behalf we allege mismanagement of delivery and failure properly to suture her episiotomy ...

If you are able to assist I shall forward all relevant documentation ... It would he helpful if you could give me an early indication of your likely maximum fee.

This is by contemporary standards a perfectly professional approach, but the expert has been programmed – not told what to say but prompted what to look for. The hypothesis has been established by the lawyers, and the invitation to the expert is now to assemble what can respectably be advanced in support of it.

More than one contributor here notes that what has marked the modern growth of malpractice litigation is a new willingness of doctors to testify against colleagues who have made mistakes, supplanting a historical – though certainly not universal – reluctance to break ranks. NHS consultants are not paupers, but they can ask and expect today to get £150 an hour for giving advice and £750 a day for attending court. A doctor sufficiently in demand to make a primary or secondary living as a witness can readily come to depend on a handful of specialist solicitors who want to be sure that they and their clients are getting a reliable product and who will not come back to an expert who fails to deliver. Delivery doesn’t mean being prepared to defend the indefensible or advocate the untenable; nor, however, does it mean offering the court the most neutral possible appraisal. It means having the acumen to weed out the losers and to make out a watertight case on the rest; and in this as in other respects it is indistinguishable from professional advocacy. I doubt whether anybody working in this field would claim that a doctor approached as recommended here would deliver the same report as if the letter of instruction had simply said, ‘I am investigating claims against Border Health Authority alleging mismanagement of labour and neglect of signs of foetal distress,’ and had asked for a professional opinion on the documentary evidence without saying for which side the solicitor was acting.

The worries do not end here. Simanowitz sees the patient’s lawyer as David confronting Goliath; but, he says, ‘there is a growing band of doctors who are prepared to help ... The danger of using a doctor who is not known to be helpful is that without the experience in medical litigation to analyse properly a medical report, lawyers will not know whether that report can be relied on.’ Whatever this may mean, what Simanowitz describes as the ‘tried and tested’ expert is a practical necessity for both parties – an expert who will both produce a convincing report and then stand by it in the witness box. It has accordingly become a practice to instruct counsel to ‘settle’ expert reports: that is to say, to draft or redraft them acceptably for the purposes of the litigation. The courts have sometimes tolerated and sometimes frowned on this practice, but the Bar Council has endorsed it. Although this book wisely counsels the expert not to sign such a draft unless he or she can wholeheartedly adopt it, the expert is by this stage less a free agent than a member of what the book calls ‘the team’. The editors’ own chapter, ‘The Medical Report’, tactfully illustrates what this means:

by the conclusion of the [lawyers’] conference with the experts the ground may have shifted appreciably from that set out in any first-stage reports. Where they are acquainted with the legal process, the experts will have no misgivings about making substantial changes for their written (second-stage) report. The best time for these changes to be made is immediately after the conference. It is better to persuade those experts who are unaccustomed to the legal process from committing themselves until they have had the benefit of discussing the whole matter in conference.

There is more. The dubious practice among some professional witnesses of writing a favourable report for disclosure to the other side and accompanying it with a private letter pointing out to the instructing solicitor the weaknesses in the case, though not encouraged, is not condemned. In this, as in other respects, the book reflects currently accepted standards of professional practice. This is exactly what is troubling about it, for these in turn reflect a measure of mercantile professionalism which is changing the adversarial process from an endeavour to present the court with the materials from which to construct the truest picture it can into a battleground onto which march private armies with the object of leaving the opposition dead on the field – or where, on occasion, one private army is able by sheer firepower to annihilate a ragbag of honest opposition. It is not a practical project to de-professionalise litigation: the questions which John Warr asked about the law in 1649 in his pamphlet The Corruption and Deficiency of the Laws of England – ‘Why is it not ashamed of its long and mercenary train? Why can we not ask it and receive it ourselves, but must have it handed it to us by others?’ – are as far as ever from being answered. What has to be looked at in this situation is the adversarial process itself.

The notion that the truth is best arrived at by a court impartially observing the clash of opposites is historically sanctioned in common law systems, but it is not self-evident. Other legal systems function without obvious injustice by giving the court itself a proactive and investigative role in which the parties are listened to but the witnesses are the court’s and the procedure is a function of the court’s requirements rather than of the parties’ strategies. So, in fact, does at least one significant part of the English legal system: the family courts in child-care cases have now put a stop to the use of litigation as the continuance of domestic disputes by other means. They do not allow parties to pick and choose which experts’ reports they will show the court and which they will not; and they require to see how the expert has been instructed. They have been able to do this because of their supervisory role in child protection, a role which the courts that try medical negligence cases do not – in current legal theory – possess. It is for this reason that the trench warfare which now characterises much civil litigation (criminal procedure raises very different issues) may have to yield to a system in which the parties define the issues the court then takes charge of the means by which they are to be canvassed.

Lord Woolf, who is reviewing the whole of civil procedure for the Lord Chancellor, is known to be thinking about such a move. If so, high on the agenda will be the question of expert witnesses. The existing power of a court to appoint its own expert is in mothballs because one of the parties is required to initiate the process. If this limitation is removed, the way will be clear for the court, having seen the issues defined by the parties, to appoint an expert from an agreed list to give an informed opinion. This expert will of course be open to questioning and challenge by each side; and so each side will want its own specialist adviser to brief it on what challenges to raise. This is entirely acceptable (and the legal aid system should extend to it); but it will have to stop at the point where a party tries to back its challenge by putting in front of the court’s expert the contradictory report of another leading practitioner in the same field. To allow this would be to readmit the stage army to the courtroom, for if one side can do it, so can the other, and if each can proffer one contrary expert’s report, each can proffer half a dozen. Once again, sheer firepower would start to determine outcomes. If such a radical shift is not adopted, my own view is that it is necessary as a minimum that the privilege against disclosure of the instructions given to experts should be abolished, so that the court can know how and to what extent the expert has been briefed.

If the legal system in this country moves towards such a scheme, it will be because the mercenary train of the law has become in too many instances an impediment to justice. No lawyer can afford in the client’s interests to take a less confrontational stance than the opposition. It is the system itself which therefore has to readapt. With its historic baggage this is not something that it has so far found easy to do. For instance, the courts have for a long time had powers to arrange for large groups of cases to be tried through representative samples, but the chapter in this book written by two solicitors, Mark Mildred and Rodger Pannone, with unrivalled experience of multiple litigation, depresses by its tale of difficulties, often produced by disparities in eligibility for legal aid, encountered in mass litigation against pharmaceutical companies for alleged side-effects of drugs. Yet, as they also recount, in the equally large field of industrial disease and trauma – deafness, lung disease and so forth – orderly test-case litigation, usually conducted by trade-union solicitors and defended by experienced insurers, has enabled a maximum of claims to be resolved with a minimum of litigation.

Meanwhile, confronted in case after case with two experts drawing opposite conclusions from shared factual premises, judges have to decide whether there has been medical negligence or not. Much as they might sometimes like to, they cannot declare a draw. If neither expert has been shown to be dependent on faulty logic, the choice inexorably comes down to which of them has given the judge more confidence in his or her skill and judgment. It is a final irony that, like other historic invasions, the invasion of medicine by the cohorts of the law has driven the bedside manner from the sickroom only to find it alive and well in the courtroom. The consultant may be a martinet on the ward, but if he or she has the capacity to inspire confidence and to reassure in court – has the right bedside manner – it is this rather than all the forensic preparation in the world which may decide the case.