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Volumn 3, Issue 2, 1996, Pages 109-126

Medical malpractice in England and Wales - A postcard from the edge

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; COURT; LAW SUIT; MALPRACTICE; MEDICAL PROFESSION; NATIONAL HEALTH SERVICE; POLICY; RISK MANAGEMENT; UNITED KINGDOM;

EID: 0030035318     PISSN: 09290273     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180996X00022     Document Type: Conference Paper
Times cited : (2)

References (65)
  • 1
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    • note
    • I am thinking in particular of the appellate cases which have addressed such questions as consent to treatment, the lawfulness of treatment for incompetent patients and/or children, withdrawal of treatment, access to health records, and confidentiality. See, for example, Sidaway v Bethlem Royal Hospital Governors [1985] AC 871; Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112; Re R (a minor)(wardship: medical treatment) [1991] 4 All ER 177; Re W (a minor)(medical treatment) [1992] 3 WLR 758; Re T (Adult: Refusal of Medical Treatment) [1992] 3 WLR 782; F v West Berkshire Health Authority [1990] 2 AC 1; Airedale NHS Trust v Bland [1993] 1 All ER 821; R v Mid-Glamorgan Family Health Services Authority, ex parte Martin [1995] 1 All ER 356; W v Egdell [1990] 1 All ER 835.
  • 8
    • 85035161040 scopus 로고    scopus 로고
    • note
    • The figure of 1,618 cases for 1990/91 does not include the cases from one Region, since the figure was unknown, although the Region was able to include a figure for the cost of settlements. The same Region had in excess of 100 cases in both 1991-92 and 1992-93.
  • 9
    • 85035161039 scopus 로고    scopus 로고
    • Source: Department of Health. Note that figures for claims against hospitals do not include claims made against general practitioners
    • Source: Department of Health. Note that figures for claims against hospitals do not include claims made against general practitioners.
  • 10
    • 33750388906 scopus 로고
    • Department of Health, Arbitration for Medical Negligence in the National Health Service, 1991. This consultation paper said that there were about 35 cases in which the damages exceeded £ 300,000, and the total damages in these cases was in the region of £ 17 million. The remaining £ 28 million went on about 7,000 cases, at an average cost per case of about £ 6,500. See further Jones, M.A., "Arbitration for medical negligence claims in the NHS" (1992) 8 PN 142. Possibly the discrepancy in the number of claims reported could be explained if the consultation paper was referring to claims made rather than claims paid.
    • (1991) Arbitration for Medical Negligence in the National Health Service
  • 11
    • 84973810223 scopus 로고    scopus 로고
    • Cited in Vincent, C., and Clements, R., "Clinical risk management - why do we need it?" (1995) 1 Clinical Risk 1
    • Cited in Vincent, C., and Clements, R., "Clinical risk management - why do we need it?" (1995) 1 Clinical Risk 1.
  • 14
    • 85035163068 scopus 로고    scopus 로고
    • In 1977 the cost of subscription to a medical defence organisation was £ 40. By 1988 this had reached £ 1,080
    • In 1977 the cost of subscription to a medical defence organisation was £ 40. By 1988 this had reached £ 1,080.
  • 16
    • 85035171002 scopus 로고    scopus 로고
    • note
    • Whitehouse v Jordan [1980] 1 All ER 650, 658. See also Hyde v Tameside Area Health Authority (1981), reported at (1986) 2 PN 26, 29 where his Lordship said that: "It is of the first importance so that 'medical malpractice' cases should not get out of hand here as they have done in the United States of America".
  • 18
    • 0013594695 scopus 로고
    • Ham, C., Dingwall, R., Fenn, P., Harris, D., Medical Negligence: Compensation and Accountability, 1988, pp. 19-20. Indeed, in Barker v Nugent (1987) (unreported) QBD, Rougier J commented that comparisons with the position in the United States of America were not entirely sound, specifically rejecting the argument of counsel for the defendant that, as a matter of public policy, and to avoid an escalation of defensive medicine, the courts should be slower to impute negligence to the medical profession than to others: "I can think of only one thing more disastrous than the escalation of defensive medicine and that is the engendering of a belief in the medical profession that certain acts or omissions which would otherwise be classed as negligence can, in a sense, be exonerated".
    • (1988) Medical Negligence: Compensation and Accountability , pp. 19-20
    • Ham, C.1    Dingwall, R.2    Fenn, P.3    Harris, D.4
  • 20
    • 0025052317 scopus 로고    scopus 로고
    • Fenn, P., Dingwall, R. and Quam, L., (1990) 301 BMJ 949
    • Fenn, P., Dingwall, R. and Quam, L., (1990) 301 BMJ 949.
  • 26
    • 0004146433 scopus 로고    scopus 로고
    • Sweet & Maxwell, Appendix
    • See HC (89)34, HC (89)(FP) 22; cited in Jones, M.A., Medical Negligence, 2nd ed., Sweet & Maxwell, 1996, Appendix.
    • (1996) Medical Negligence, 2nd Ed.
    • Jones, M.A.1
  • 31
    • 85035169322 scopus 로고
    • JPIL 30, n. 1
    • In April 1993 only 48 per cent. of households were eligible for Legal Aid, whereas in 1979 80.9 per cent. of households were eligible: Fennell, S., "Access to Justice for Personal Injury Litigants" (1994) JPIL 30, n. 1.
    • (1994) Access to Justice for Personal Injury Litigants
    • Fennell, S.1
  • 38
    • 33750407991 scopus 로고
    • The Review of Legal Aid expenditure, Eligibility for Civil Legal Aid, (1991), HMSO, estimated that of Legally Aided litigation, medical negligence claims had a 42 per cent. success rate, compared with success rates for road traffic accident claims and work accident claims of 84 per cent. and 79 per cent. respectively.
    • (1991) Eligibility for Civil Legal Aid
  • 39
    • 85035169322 scopus 로고
    • JPIL 30.
    • A study in 1993 put the success rate for Legally Aided medical negligence claims at 68 per cent., compared with a success rate of over 90 per cent. for other types of claim: Fennell, S., "Access to Justice for Personal Injury Litigants" (1994) JPIL 30.
    • (1994) Access to Justice for Personal Injury Litigants
    • Fennell, S.1
  • 40
    • 0027433790 scopus 로고
    • 307 BMJ 1483
    • Another study, of 100 claims, found that 56 cases involved clinical fault, but only five had received compensation; 11 cases were on-going; 25 were 'dormant' and 59 had been withdrawn: Neale, G., "Clinical analysis of 100 medicolegal cases" (1993) 307 BMJ 1483.
    • (1993) Clinical Analysis of 100 Medicolegal Cases
    • Neale, G.1
  • 41
    • 0022533791 scopus 로고
    • The Report of the Harvard Medical Practice Study to the State of New York found that while one per cent. of hospital patients suffered injury as a result of negligence, over 90 per cent. of these patients went uncompensated: Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation and Patient Compensation in New York, 1990. A California study in 1974 estimated that of 140,000 medical injuries, 24,000 were the result of negligence, but there were only 4,000 claims of which only 2,000 were successful: cited in Smith, R., (1986) 293 BMJ 461.
    • (1986) BMJ , vol.293 , pp. 461
    • Smith, R.1
  • 42
    • 85035160134 scopus 로고    scopus 로고
    • Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, commonly referred to as the Bolam test
    • Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, commonly referred to as the Bolam test.
  • 43
    • 85035168969 scopus 로고    scopus 로고
    • (1993) 4 Med LR 381
    • (1993) 4 Med LR 381.
  • 44
    • 85050413283 scopus 로고
    • Medicine, Accountability and Professionalism
    • See Montgomery, J. "Medicine, Accountability and Professionalism" (1989) 16 J of Law and Soc 319, 322 who argues that there has been a consistent refusal by the judges to set substantive standards for the medical profession, and that claims to the contrary "make too much of obiter dicta and too little of the sobering indications of judicial practice,"
    • (1989) J of Law and Soc , vol.16 , pp. 319
    • Montgomery, J.1
  • 46
    • 33750389605 scopus 로고
    • 1 Med Law Int 3, 5
    • Professor D. Giesen "Medical Malpractice and the Judicial Function in Comparative Perspective" (1993) 1 Med Law Int 3, 5 observes that "decisions in England and Scotland betray an unusual deference to doctors' interests" in contrast to the standards expected of doctors in all other member states of the European Community and all the major common law jurisdictions.
    • (1993) Medical Malpractice and the Judicial Function in Comparative Perspective
    • Giesen, D.1
  • 47
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    • Vindicating the Patient's Rights: A Comparative Perspective
    • See also Giesen, D., "Vindicating the Patient's Rights: A Comparative Perspective" (1993) 9 J of Contemp Health Law and Policy 273, 291 commenting that the law of England and Scotland is "singularly deferential to the interests of the medical profession and correspondingly weak in the protection it affords to patients who have been carelessly injured in the course of undergoing treatment or diagnosis."
    • (1993) J of Contemp Health Law and Policy , vol.9 , pp. 273
    • Giesen, D.1
  • 48
    • 33750391938 scopus 로고
    • Bolam Revisited: Halting the Slide
    • Scott, W., 'Bolam Revisited: Halting the Slide' (1991) 2 AVMA Medical & Legal Journal (No. 3) p. 16.
    • (1991) AVMA Medical & Legal Journal , vol.2 , Issue.3 , pp. 16
    • Scott, W.1
  • 49
    • 85035163570 scopus 로고    scopus 로고
    • [1994] 2 WLR 554
    • [1994] 2 WLR 554.
  • 50
    • 85035170701 scopus 로고    scopus 로고
    • ibid., p. 576
    • ibid., p. 576.
  • 51
    • 85035166410 scopus 로고    scopus 로고
    • ibid., p. 572
    • ibid., p. 572.
  • 52
    • 85035160511 scopus 로고    scopus 로고
    • ibid., pp. 571-572
    • ibid., pp. 571-572.
  • 53
    • 85035161429 scopus 로고    scopus 로고
    • sub. nom. X (minors) v Bedfordshire County Council [1995] 3 WLR 152, 184, per Lord Browne-Wilkinson
    • sub. nom. X (minors) v Bedfordshire County Council [1995] 3 WLR 152, 184, per Lord Browne-Wilkinson.
  • 54
    • 85035167640 scopus 로고    scopus 로고
    • An argument to this effect was rightly rejected by Rougier J in Barker v Nugent (1987) (unreported) QBD
    • An argument to this effect was rightly rejected by Rougier J in Barker v Nugent (1987) (unreported) QBD.
  • 55
    • 29344474140 scopus 로고
    • Defensive Medicine: Myths and Facts
    • Jones, M.A., and Morris, A.E., "Defensive Medicine: Myths and Facts" (1989) 5 J of the MDU 40;
    • (1989) J of the MDU , vol.5 , pp. 40
    • Jones, M.A.1    Morris, A.E.2
  • 57
    • 0028819549 scopus 로고
    • Positive and negative factors in defensive medicine: A questionnaire study of general practitioners
    • Summerton, N., "Positive and negative factors in defensive medicine: a questionnaire study of general practitioners" (1995) 310 BMJ 27.
    • (1995) BMJ , vol.310 , pp. 27
    • Summerton, N.1
  • 59
    • 0025101534 scopus 로고
    • Medical litigation and the quality of care
    • comments that: "... it should be appreciated that 'defensive medicine' is a figment of the paranoid medical profession's imagination... Often what is regarded as 'defensive' medicine is simply the prevailing view of safe and prudent practice." Black, N., "Medical litigation and the quality of care" (1990) 335 The Lancet 35, 37 concludes that litigation does not seem to be damaging the quality of medical care, although "the cost of medical litigation may yet prove to be damaging to the quality of care."
    • (1990) The Lancet , vol.335 , pp. 35
    • Black, N.1
  • 60
    • 0013594695 scopus 로고
    • There is very little empirical, as opposed to anecdotal, evidence to support the theory that doctors do practise defensively. A commonly cited example of defensive practice is an increased rate of Caesarian section deliveries as a consequence of obstetricians fearing that claims in respect of birth injuries could arise from forceps deliveries or allowing a difficult labour to progress too long. Caesarian section rates have been increasing, however, in many developed countries with very different systems of health care provision and different patterns of litigation, and may be explained by factors which have very little to do with litigation: Ham, C., Dingwall, R., Fenn, P., Harris, D., Medical Negligence: Compensation and Accountability, 1988, p. 14.
    • (1988) Medical Negligence: Compensation and Accountability , pp. 14
    • Ham, C.1    Dingwall, R.2    Fenn, P.3    Harris, D.4
  • 61
    • 85035162500 scopus 로고    scopus 로고
    • note
    • The change of practice on the disclosure of the risk of a sterilisation operation failing to achieve sterility is probably a direct consequence of the litigation that has occurred in this area. Compare Gold v Haringey Health Authority [1987] 2 All ER 888 with Gowton v Wolverhampton Health Authority (1994) 5 Med LR 432 in which it was accepted by the defendants' experts that by 1986 it would have been negligent to fail to warn of the risk of recanalisation following a vasectomy operation, a risk put at one in two to three thousand.
  • 63
    • 0004217031 scopus 로고
    • HMSO (interim report)
    • Access to Justice, 1995, HMSO (interim report).
    • (1995) Access to Justice
  • 64
    • 84970843745 scopus 로고    scopus 로고
    • See (1995) 311 BMJ 757
    • See (1995) 311 BMJ 757.


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