The path to negligence is paved with good intentions

 

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I attended a meeting at the House of Lords earlier this month to debate Lord Saatchi’s well intentioned but in my view, flawed medical innovation Bill.

Lord Saatchi believes the law, as it stands, discourages doctors to innovate, as, he assumes, clinicians believe claims may be brought against them if they don’t follow standard procedure.

I applaud the sentiment behind this Bill. Lord Saatchi obviously believes strongly that the Bill will improve innovation and therefore increase the development of drugs that will cure diseases.

However, as a clinical negligence lawyer my primary concern is for the rights of patients and whilst I welcome any progress in terms of curing diseases for patients, I fear this Bill could open the door to negligent doctors who would be protected from litigation by this Bill, a primary concern for many following the scandal of Mid Staffordshire Trust and other revelations within the NHS.

I have not seen any evidence to support Lord Saatchi’s assumption that doctors are litigated against following innovative procedures. Personally, despite working in one of the countries leading clinical negligence practices for 18 years I have never pursued a case against a doctor who was seeking to innovate.

The law currently requires the Bolam Test to be applied when assessing whether a doctor has been negligent.
This test states that a doctor is judged in terms of his specialism and his seniority, and he is not negligent if a reasonable body of medical peers, skilled in that particular ‘art’, accepts the care that was given was competent care.

Therefore, even if a doctor deviates from the standard practice he would not be deemed negligent if a responsible body of doctors supports the care given in those circumstances.

One other concern about the reasoning behind the bill is the misconception that a patient who has a very poor prognosis, because of their disease, would not be given innovative drugs for fear of legal action.

In order to prove a negligence claim, not only does the doctor have to breach their duty of care but there must also be a causative link – meaning that had the care been given appropriately, on balance, the outcome would have been different.

Therefore a patient that has a poor prognosis is unlikely to have a different outcome and therefore there could never be the prospect of a clinical negligence claim against a doctor who is involved in innovative care for that patient.

Case law also supports innovation by doctors stipulating that the Bolam test ought not to be allowed to inhibit medical progress.
If Lord Saatchi is right about doctors fear of innovation then there would be no innovation, for example heart transplant surgery would never have been attempted.

There are also concerns for doctors, as I believe the Bill will instigate a whole stream of litigation given the lack of clarity about some of the terms used within the Bill.

I have great reservations about this Bill. It provides less protection and dilutes patients’ rights; in addition because of the need for clarity, it could open the floodgates for litigation and potentially more claims against doctors as a result. Well-intentioned but fatally flawed.

Suzanne White is a partner in the Clinical Negligence team at Leigh Day

1 Comment

Filed under Clinical Negligence

One response to “The path to negligence is paved with good intentions

  1. Suz, I agree with your sentiments. The Bill contains protection for a doctor (thir subjective view), but no balancing requirement to an enhanced consent form for the patient. Worse, clause 6 (b) [http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0021/lbill_2013-20140021_en_2.htm#l1g1] sneaks in protection for ‘managment’ under the guise of ‘treatment’. This will potentially have a major impact on potential claims. It should be stopped.

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