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RESPONSE TO CONSULTATIVE PAPER:
CLINICAL NEGLIGENCE: WHAT ARE THE ISSUES AND OPTIONS FOR REFORM?
THE CASE FOR A VICTIM’S COMPENSATION FUND
BALANCING THE SCALES
SUBMITTED ON BEHALF OF THE IATROGENIC PATIENT
BY
SUFFERERS of IATROGENICNEGLECT
Margaret MacRae & Gillian M Bean
Co-Directors & Founder Members SIN
© February, 2002
Submitted to Department of Health March 2002
e-mail:sinfo@boltblue.com & mag@sinfo.freeserve.co.uk
COSTS TO VICTIMS AND THEIR FAMILIES v.
COSTS TO THE NHS AND HEALTH PROFESSIONALS
Sufferers of Iatrogenic Neglect (SIN) is concerned about iatrogenic suffering. This group acknowledges that medical care in the NHS is of the highest standard for the majority of patients, however, because health professionals are human, mistakes and poor practice will occur. Fortunately, it is now being publicly admitted that a small but significant number of patients, through no fault of their own, fall victim to a medical error, some of these errors resulting in death and serious, permanent injury. For too long the social and personal consequences of these unresolved medical mistakes have been a taboo subject and SIN is gratified that, because of the pressure from this group and others, this is no longer the case. The only way standards will improve in the NHS, is by accurate recording and causal analysis of adverse incidents, which has been prevented by an all pervasive culture of denial and cover-up with damaging consequences to both patient and health professional. No health professional should be obliged to lie and no patient should be denied the truth as to his or her true medical condition. This paper is concerned solely with iatrogenic patients and their relatives, and is a plea that this significant minority should receive justice and the truth, with all due medical care and consideration.
CONTENTS Return to Publications
SECTION 1. Introduction
SECTION 2a. The present system:
the NHS Complaints Procedure
SECTION 2b. The Present System:
the Medico-Legal Route
SECTION 3a. Victim’s Compensation Fund: pros/advantages
SECTION 3b. Victim's compensation Fund: barriers/problems
SECTION 4. Assessment of damages
SECTION 5. Victim’s compensation fund
Adminstrative Procedures?
SECTION 6. Quality control and accountability
SECTION 7. Conclusion:
Changing the "mindset" of 50 years
SECTION 8. Appendices:
Torts which have controlled the medico-legal cases in the English courts for half a century
Section 1. Introduction: Return to Contents
1.1 More than 25 years ago, the issue of medical damage and compensation for the victims of such incidents was dealt with in Sweden in 1975 under the Patient Insurance Scheme. Both patients and professionals applauded this initiative. By the late 1970’s and early1980’s Norway too became acutely aware of the need to address this area of public concern and in 1987 a committee was set up to tackle the problem. The result was a scheme, which initially compensated victims of medical errors in those public hospitals treating somatic illnesses only. However, in 1992 the scheme was extended to cover most other areas in the healthcare system, including those iatrogenically damaged in accident and emergency departments, state psychiatric hospitals and also in certain privately owned hospitals 1.
1.2 In April 1998, the former Health Secretary, Mr. Frank Dobson, was extremely concerned about the ever increasing costs of litigation affecting the NHS and wrote to several organisations representing the NHS, patients, consumers, health professionals, lawyers and others. His aims were:
To reduce the number of incidents which might lead to a claim
To ensure that patients understand the risks inherent in treatment
To improve the process for people who need to claim
1.3 Health Select Committee published the findings of an inquiry into adverse incidents in October 1999. The report 2 reflected the evidence from approximately 300 submissions, and exposed the dire state of the NHS when it came to dealing with medical errors. It showed that patient abuse was widespread and that the victims of medical errors had no protection.
1.4 On 10th July 2001, proposals were announced by Mr Alan Milburn, Secretary of State for Health to produce a White Paper by early 2002, which would set out changes to the current system for dealing with clinical negligence claims. Prof.Sir Liam Donaldson, the Chief Medical Officer was to Chair a committee to consider the implications of issues and options for reform, the most innovative one being a victim’s compensation fund. SIN was particularly pleased at this suggestion because the setting up of such a fund for the victims of medical errors has been one of the Group’s objectives for the last two and a half years. When these proposal’s came to our attention on the Department of Health’s website in July 2001, SIN was very disappointed not to have been invited to be part of this committee. SIN represents patients who have been affected by medical errors and has firsthand information as to the problems of negotiating the present deeply flawed system in an attempt to obtain justice and the truth. With the experience of our members, SIN was in a most advantageous position to contribute to these discussions. Unfortunately, our request to be included was rejected. However, we are pleased to present this written submission on behalf of our members.
1.5 In our opinion, we respectfully suggest that the composition of the final committee does not consist of any individual or organisation, which is fully cognisant with the trauma and problems faced by individual iatrogenic patients and their families. We note there are only two representatives from patient support groups.
Ms.Clara MacKay: Patient’s Forum and Consumer Association
Mr. Richard Brewster: Chief Executive Scope
1.6 As previously pointed out these groups have very little if anything to do with iatrogenic damage. Scope, we understand, represents patients suffering from cerebral palsy, of which only a relatively small number will have suffered iatrogenic damage; and the Patient’s Forum appears to be an alliance of patient support groups consisting, on the whole, of patients with diagnosed illnesses, receiving appropriate care. Also on the Committee is Mr Arnold Simonowitz, a barrister who represents Action for Victim’s of Medical Accidents (AVMA). Since this group’s primary concern is to advise and direct patients to the medical litigation route, it is obvious that his contribution to the discussion will be largely from a legal perspective and will not represent the wider experiences and personal views of damaged patients and their relatives. This submission will be informative and add significantly to the discussion because it is based on evidence from iatrogenic victims.
1.7 In response to the document “Clinical negligence: what are the issues and options for reform?” 3, we have attempted to divide the questions raised for comment into six approximate headings:
Present system dealing with clinical negligence: NHS Complaints Procedure and Medical Litigation system (covering questions: 1 – 8 )
No – fault Victim’s Compensation Fund - Pros and Cons.(covering questions 9 - 12)
Assessment of damages (covering questions 13 – 17)
Suitable schemes for administering a Victim’s Compensation Fund (covering 18 – 21)
Quality control and accountability
Conclusion: changing the “mind-set “ of 50 years.
Footnotes
1 John Elder, Who Cares about the Health Victim?, 1998 Klaxon Books
2 Procedures related to adverse clinical incidents and outcomes in medical care, Sixth report Vol. II, 1999 , Health Select Committee, The Stationery Office.
Section 2a - The Flaws of the Present System:
the NHS Complaints Procedure Return to Contents
2.1 In the opinion of our members this Procedure is a confidence trick played on the trusting patient at the taxpayer’s expense. A full exposé of this farcical and unlawful system can be viewed in our article “The Emperor has No Clothes” and in Section 4 “Empowerment via the NHS Complaints Procedure” in SIN’s paper “The Patient’s Voice For Equity” (see website https://www.sin-medicalmistakes.org) Both papers were submitted to the Bristol Royal Infirmary (BRI) Inquiry and can also be found on this website. 4
2.2 There have been several evaluations of the NHS Complaints Procedure 5 and all have come to the conclusion that it is a seriously flawed system, which offers no protection, justice, or redress for the damaged patient. Mr Frank Dobson himself admitted in July 1999 before the Health Select Committee that:
“The present system of protecting patients is a bit of a shambles” 6
2.3 The Department of Heath (DoH.) Guidelines states that: “The purpose of the Complaints Procedure is not to apportion blame amongst the staff” 7. The Independent Review is not “disciplinary or punitive in nature” 8. Furthermore, one cannot prove a case of Clinical Negligence and there is no point in taking a serious complaint to the Ombudsman’s Office because this Office is forbidden to carry out: “An investigation in respect of an action to which the person aggrieved has or had; - a remedy by way of proceedings in any court of law” 9.
2.4 The most damning indictment of the NHS Complaints Procedure is that it fails to comply with Article Six of the Human Rights Act 1998: “The right to a fair hearing”. “In determination of his civil rights and obligations… everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial Tribunal, established by law. Judgement shall be announced publicly… except where publicity would prejudice the interests of justice”10.
2.5 What possible use is an NHS Complaints System that: -
Does not establish accountability ( i.e. apportion blame)
Does not deal with disciplinary issues;
Cannot deal with clinical negligence;
Cannot deal with a any serious issue which demands a legal remedy;
And is unlawful and a violation of our human rights to a fair hearing?
2.6 Furthermore, the people who deliberately devised such a deceitful, devious, iniquitous system resulting in a profligate waste of public money should be held publicly accountable. It is impossible to overstate the trauma and personal frustration of decent British citizens who have attempted in good faith to make use of this undemocratic and unlawful procedure.
Footnotes
4 https://www.bristol-inquiry.org.uk
5 SIN’s Critique : “ The Emperor Has No Clothes” Aug. 1999 GM Bean & M. MacRae
Health Service Journal : News Focus: “ It’s No Use Complaining” Article by the ACHCEW (Community Health Councils) July1998
The Law Project : “ Cause For Complaint” : H Wallace & L. Mulachy. Sept.1999
Health Select Committee “ Inquiry into Adverse Incidents & Their Outcomes” Vols 1& 2 Nov. 23rd 1999 Health Which? “NHS Complaints 2 April 2000 pages 8 -12
6 Frank Dobson: Daily Mail dated 16th July , 1999
7 NHS Complaints Procedure D.o.H. Guidelines p13 para 4.28 …” the purpose of the Complaints Procedure is not to apportion blame…”
8 Independent Review : A Briefing Pack for Clinical Assessors for the use in conjunction with the new NHS Complaints Procedure which came into effect on April 1st. 1996: Institute of Health & Care Development. Page 11 para. 5.2 “Independent Review is not punitive or disciplinary in nature.”
9 The Health Service Commissioner’s Act 1993: The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or has had – (b) a remedy by way of proceedings in any court of law
10 Article 6 “ The Right To A Fair hearing” Human Rights Act 1998 : ACHCEWs document entitled “ The Implication of the Human Rights Act 1998: “ …it is clear that the operation of the NHS Complaints procedure does not comply with this Article..”
Section 2b: The Flaws of the Present System:
the Medico-Legal Route Return to Contents
2.7 Iatrogenic patients, either through their own resources or through legal aid, attempt to exercise their democratic rights to go to law to sue for justifiable compensation and find the way obstructed because the medical profession closes ranks making it almost impossible to obtain a medical expert. This “closing of the ranks” is a euphemism for collusion and indeed corruption and British doctors seem to have a stronger masonic type allegiance to colleagues who may be incompetent than a duty of care to the innocent and trusting patient 11. The present practice of adopting automatically a defensive stance to any claim of iatrogenic damage, however justified it might be, can no longer be accepted. Lord Woolf has echoed these views of SIN, in his Inaugural Lecture, 17th January, 2001 when he stated:”…It is clear to the courts that the hospitals and the medical profession could not be relied on to resolve patients’ justified complaints justly”.: The present legal system is badly flawed with the odds stacked against the aggrieved complainant in the following ways:
Prohibitive costs 12
Virtual impossibility of obtaining complete and accurate medical records
Difficulty of obtaining expert witnesses to speak out against colleagues
Excessive deference paid to the medical profession by the courts 13
Unwarranted, automatic assumption of beneficence by the courts to the medical profession 14
The overriding aim of the medico-legal system, since the inception of the NHS, to restrict compensation awards to the iatrogenic victims, irrespective of the serious damage incurred and in face of damning evidence. 15
The reliance on the illogical, nonsensical and unethical judgements 16 such as Bolam17, Sidaway 18 and Roe
Length of time taken and wasted by lawyers, which effectively puts an end to claims for the majority of victims.
2.8 Since the foundation of the NHS, over 50 years ago, the main purpose of the legal system is not to address medical negligence, but rather to keep a lid on the bill for compensation at all costs. The results of this short-sighted decision made in the newly fledged Ministry of Health have, we suggest, been catastrophic for the NHS as a whole.
2.9 Members of SIN and other iatrogenic patients have come to the conclusion, with evidence, that the justice system is “rigged”; the NHS Complaints Procedure is ineffectual with the result being that there is no accountability or quality control. A persistent 50 year old culture of “denial and cover-up” has suppressed many scandals and protected the exposure of incompetent and malpractising health professionals .At last a Secretary of State for Health, Mr Alan Milburn, has been courageous enough to acknowledge that indeed such cover-ups exist . The implications of, and ingredients of, a cover-up in the NHS should be faced and made explicit 19.
2.10 Cover-ups of medical errors and serious iatrogenic damage to patients do not occur by chance: it is systematic and deliberate. Cover-ups involve the making of misleading and inaccurate statements; the removal of and tampering with incriminating and crucial medical records and test results, which confirm the adverse medical incident and the iatrogenic damage. Because no health professional dares to break ranks to admit that iatrogenic damage has occurred, it follows that no genuine remedial care can be given. In effect this means that successive health professionals will withhold their medical expertise and deny medical care to iatrogenic victims 20 even though these patients are seriously ill and their lives may be at risk. Iatrogenic patients remain in this “no man’s land “ and become modern day “lepers” or “hot potatoes”, because to acknowledge that damage has occurred and to give remedial care, would provide the patient with the necessary evidence for a court case and so increase the costs of compensation, and make professional colleagues vulnerable to claims of incompetence, negligence or malpractice. We would like to believe that many good doctors resent being caught up in this corrupt culture, which de-humanises them by pressurising them to conform by not telling the truth and to withhold medical care from vulnerable and needy patients. Such cover-ups are wicked and cruel to the patient victims and indeed must have a deleterious effect on the psychological well being of doctors and nurses who purport to be part of a caring profession.
2.11 The patient has the right to the truth about their medical condition and such cover-ups are obviously unethical, in some cases criminal, and can never be defended or justified. It is disgraceful in a so-called democratic and civilised country that such a pivotal profession must lie. This 50 years of a “denial and cover-up” culture has resulted in continual lowering of standards because there has been little or no quality control or accountability. The result has been that now the care being provided to British nationals has been shown to be amongst the lowest in Western Europe for the major specialities 21.
2.12 It is clear from this state of affairs, that very few iatrogenic cases will be resolved in favour of the patient through the legal route, which is presently the only route. In spite of there being an estimated 68,000 deaths per year 22 and 170,000 permanently damaged though medical errors , many of which could be a justifiable case for compensation, there is only 17%, according to Lord Woolf 23, who are successful. For the vast majority of cases, the legal route offers no redress or justice to damaged patients. The higher the status and the greater the number of consultants involved in any case, however strong the evidence, that case is extremely unlikely to go to court. Although the legal fraternity is fully aware of the obstacles to achieving a successful case because of the “rigging” of the legal justice system as outlined above, victims of medical errors are nevertheless actively encouraged to embark on the legal process: the only sure winners being the legal profession. We suspect that there is extensive publicity given to the few successful, high compensation claims to lure the innocent, trusting, damaged patient into the highly flawed and “fixed” legal system. Cases settled out of court with “gagging orders” are bad for democracy.
2.13 It is not surprising that legal aid costs have soared since patients on full legal aid have no right of access to scrutinise the final legal aid bills submitted by their legal team. This actually amounts to a “blank cheque” being given to the medico - legal profession and is an outrage. It is difficult to understand why this situation ever arose and why it has been allowed to continue unchallenged for years and never rectified. What possible defence can be mounted to justify this drain on public funds, which is wide open to unscrupulous abuse?
2.14 Although many cases are scuppered because of dubious expert evidence and lack of critical medical records, a good number of bona fide case are ended purely on time grounds (i.e. three years), and it is often claimed that it is time wasting on the part of the legal profession which has caused this. Any case, which is allowed to be successful, can take anything up to ten years, the average being six years 24 to reach completion. This would seem to be unnecessary and unacceptable and only adds to the legal bill and the patient’s suffering.
2.15 So great is the concern of our members about the integrity of their medical records that this issue warrants a paragraph to itself. All our members have tried to access their medical records, which is their right under law. They have found, without exception, that critical documents relating to an adverse incident are missing; or give an inaccurate summary of patients’ symptoms/medical history and/or consultations; or have been changed. Tampering with medical records includes X-rays, ECGs, blood tests scans etc. Obviously, if a cover up is in progress, which denies that a patient has been damaged, then test results must always be negative. One of the most distressing aspects is the abusive and derogatory personal remarks written into medical records with the sole aim of discrediting the patient 25. This is quite outrageous for any profession to deliberately engage in such activity. Missing medical records, which are crucial to any medical case, must lead to an assumption of automatic guilt. Since it is, in the main, that the most significant documents have been selectively removed or changed, it is reasonable to draw the conclusion that the selection was made by person or persons with a medico-legal background. Any tampering with medical records should be dealt with as a criminal offence, for we believe that medical records are crown property and considering they hold the key to accurate diagnosis and medical care, their importance cannot be overstated. No one is above the law. SIN insists that patients should have full copies of all medical records including test results 26. What possible ethical reason is there to deny this? The extent of poor quality medical record keeping is alarming and warrants an investigation in itself.
2.16 Another great concern of our members is the lack of confidentiality of our medical records. We have evidence 26a that the Medical Defence Union (MDU) and the Medical Protection Society (MPS) have access to our medical records without our knowledge or permission. This is a breach of our rights to confidentiality and is, therefore, unlawful. Furthermore any doctor releasing our medical documents without our knowledge and permission is also, we understand, committing an unlawful act. This also, we believe, applies to the lawyers of Trusts and Health Authorities and the NHS Litigation Authority. Due to the experience of our members we have had to come to the conclusion that there is no confidentiality within the medical profession, within the legal profession or between the two professions. So great is the concern and disenchantment with the legal process including the “incompetence” of many solicitors and expert witnesses that SIN is calling for a full investigation of the medico-legal system.
2.17 It can be concluded that the NHS Complaints System and the present medico-legal system have failed to provide truth and justice and appropriate medical care for the majority of damaged patients. In the present systems there is every incentive and the means of covering-up mistakes; there are no incentives to be open and honest: patients are totally dis-empowered. The only way we have of keeping costs down are ever greater cover-ups. Although it is claimed in the consultation document that the NHS Litigation Authority has been advocating the use of mediation to resolve clinical disputes27 this certainly has not been the experience of any of our members. We hold solicitors responsible because they have not informed their clients that such a process exists. A review of the scheme for compensating iatrogenic damage is long overdue.
Footnotes
11 Mail on Sunday 4th October, 1998: “ Probe into Masonic Links “ - relating to the BRI scandal
“Trust Me ( I’m a Doctor) by Dr. Phil Hammond & Michael Mosely 1999 metro Books page 6 “…Like the Masons of which there are a large number in medicine …were bound by codes of loyalty and secrecy…”
“Trust me, I’m a doctor? No fear” : The Observer 26th November 2001 ..”.This kind of Masonic self-protection goes on at an institutional level as well….”
12 Lord Woolf’s Inaugural Lecture, January 17th 2001, University College ,London : “prohibitive costs”
13 see above: “excessively deferential”
14 see above: “unwarranted, automatic assumption of beneficence”
15 Lord Woolf’s Inaugural Lecture 17th January , 2001, University College, London: “aim of medico-legal system to curb costs to NHS”
16 see above: criticism of Bolam
17 see above :Bolam v Friern Hospital Management Committee (1957) also (appendix ii page 11)
18 see appendix iiii page 11 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Royal Maudsley Hospital (1985)
19 New clinical compensation scheme for the NHS 10th July, 2001 Alan Milburn: “…mistakes are hidden and cover-ups can occur”
Daily Mail 28th December, 2001 “ Haunted by 50 scandals a year” – “…NHS expects up to 50 scandals a year in which doctors have maimed, or killed patients in botched operations [misdiagnoses> or subjected them to verbal,[written>, physical or sexual abuse.”
20 Lord Woolf’s Inaugural Lecture 17th January. 2001 doctors withhold their medical expertise to damaged patients: “They needed to recognise that because patients felt that they had been a victim of medical malpractice, this did not justify withdrawing treatment…”
The Observer , 24th October, 1999: “ Consultants blacklist complaining patients”
21 The Observer 24th October 1999; “Why we fail on cancer “
The Sunday Times 12th December 1999: “ Critical Condition of NHS”
The Observer 12th December 1999 “ Killer that shames Britain” ( heart disease)
The Sunday Times 24th February,2002 “ Long delays for heart ops”. - healthcare in Britain amongst lowest in Europe
22 Daily Mail 2nd March 2001 “ 34,000 dying needlessly every year in NHS hospitals”. Research into the incidents of medical errors done by Prof. Charles Vincent into two unnamed hospitals and extrapolated to the Uk as a whole: Estimated 68,000 deaths ( 34,000 were terminally ill) and 170,000 patients permanently damaged per year in UK hospitals
23 Lord Woolf ‘s Inaugural Lecture, 17th January 2001 University College London – only 17% of medical litigation cases are successful in England. The courts are increasingly conscious of difficulties of bona fide claimants in establishing claims.
24 BMA Conference 1999 -six year average length of legal case to settle claims
25 “Haunted by 50 scandals a year” Daily mail 28th December 2001 “..every year doctors have subjected patients to verbal[written> physical and sexual abuse”
Association of Community Health Councils in England & Wales (ACHCEW) Health survey, July 1998: “ most CHCs have had clients who have discovered judgmental or other inappropriate remarks in their records.”…..” more than two thirds CHCs say clients have discovered factual inaccuracies…”
Members of SIN have copious evidence of disparaging, personal and abusive comments in medical records which discredit the patient..
26 SIN’s Aims & Objectives: “ All medical records available after any consultation on request [signed and checked by the patient> This will prevent subsequent changing of records and stop genuine mistakes from being propagated.”
26a Annual Conference of AVMA Sept. 2001: Confirmed that the MDU & MPS had always gained unlawful access to our medical records.
27 Consultation Document D.o.H: Claims NHS Litigation Authority wants Mediation
Section 3a. Victims’ Compensation Fund:
Pros and Advantages Return to Contents
3.1 The Scandinavian countries are more advanced than the UK in the matter of addressing the personal injuries resulting from medical treatment. These countries appear to have a more “patient friendly” approach to iatrogenic damage acknowledging the need to compensate and support victims of medical errors 28. SIN is gratified to note that Norway and Sweden in particular has implemented for some years one of the main objectives of SIN namely: “…If damage occurs, the patient is informed and an assessment of damage is made. In parallel an investigation is carried out to determine the cause of the mistake and to establish accountability” 29.
Examples of Schemes:
3.2 It is perhaps of interest to register certain characteristics of the systems operating in Scandinavia: 30
Denmark: “ A series of laws have been passed in Denmark formally and legally ensuring patient’s rights, establishing a complaints process and putting in place a system for compensation claims. The aim of this legislation was to create a set of rules to secure for patients the best available treatment and care in all situations…” “Patients may claim damages in connection with treatment in public hospitals through Patients’ Insurance which was set up in 1992”. (Page106)
Finland: “Under Finland’s Patient Injury Act which came into force in may 1987, compensation is payable for personal injury caused to a patient as a result of medical treatment or care. (Page 117)
Norway: “The system is based on correct action against erring health professionals and/or their employers”. (Page 137)
Sweden: “…A patient who has been injured, infected or has met with an accident in connection with an examination, operation or treatment, can be compensated regardless of whether or not it is the fault of the health care provider”. (Page 152)
3.3 Interestingly, in contrast, Britain has an NHS Litigation Authority which to all intents and purposes was established to protect the NHS from successful legal claims made by damaged patients, which is the only route available to obtain justifiable compensation in Britain.
3.4 Benefits of introducing a Victim’s Compensation Fund:
Reduction of legal costs for NHS Litigation Authority, the Legal Aid Board and patients.
The end to unnecessary cover-ups: end to pretence and deception. The medical profession is free to speak the truth and to provide any remedial care necessary.
Remedial care readily available for damaged patients
The end to the NHS Complaints Procedure and as a consequence the reduction of costs to the tax-payer
End of trauma to patients who will no longer have to fight for truth, justice and medical care through the NHS Complaints System or the legal route.
The establishment of quality control through parallel investigations into adverse incidents: the true cause of mistakes could be acknowledged and identified.
Reduction in adverse publicity to the NHS
Less confrontational / adversarial and a more humane system for both patients and health professionals.
A fairer system because of set tariffs
Would allow for continuous monitoring of damaged patient condition
Speedier resolution
End to violation of human rights.
Immediate admission of damage would minimise any resultant long-term damage to the patients and the resultant increased costs to the health service.
Footnotes
28 John Elder : “Who cares about the health victim? 1998 Klaxon Books
29 SIN’’s Aims and Objectives, July 1999. Sufferers of Iatrogenic Neglect
30 John Elder: “ Who cares about the health victim? 1998 Klaxon Books
Section 3b: The Victims Compensation Fund:
Barriers/Problems Return to Contents
3.5 The main barriers and problems are:
Funding will be required to set up this new system, although this will be ameliorated by costs being saved in downgrading the NHS Complaints system and the legal bill. Money will be required to train Clinical Liaison Officers and Mediators.
Perhaps there will be an initial increase of the total bill of compensation to patients. This should reduce as time goes on, as there is a more systematic acceptance of truthful reporting of medical errors and their causes that can be acted on, and so leading to a reduction in overall incidents of medical errors.
The whole system hinges on the willingness of health professionals to tell the truth and to change attitudes.
This problem of persuading the profession to abolish its unethical attitude of professional allegiance should be come easier as a climate of openness and honesty becomes established. The need for professional protection will diminish and in any case should be publicly condemned and outlawed.
Persuading the medical profession to comply to a new system requires a change of a 50-year mind-set.
The NHS legal bill is approximately £4b per annum and presumably a similar amount of money is being consumed in legal aid and private legal action. It is, therefore, reasonable to assume that another barrier could be lawyers’ reluctance to change the status quo, and it is to be expected that most resistance to the setting up a victims’ compensation fund will be coming from this quarter.
It can be foreseen that the NHS will be tempted to minimise compensation tariffs, and it is to be hoped this will be resisted and equity will prevail.
Demands on doctor’s time to participate in the new scheme will increase and allowances for this will have to be built into the new system although over time this should decrease.
A major problem for patients could arise if the NHS disputed that damage had occurred or disputed the severity of damage. It is to be hoped that honesty and transparency will make these occasions rare.
3.6 In our opinion the NHS Complaints Procedure should be officially downgraded to deal with non-clinical and non-serious complaints; after all, it was only devised to address these issues and this should be clearly and honestly stated.
SECTION 4. Assessment of Damages Return to Contents
4.1 The current “compensation tariffs” referred to in medico-legal actions would be an obvious starting point. Besides, there is a vast experience of personal injury assessment in the area of both car accident and criminal injury compensation. Either or both of these examples could be used as models by any new initiative. Factors that should be presumably taken into account:
Age
Severity of damage/ quality of life
Loss of earnings/potential earnings
Career prospects
Loss of pension
Loss of life
Number of dependants
Prognosis
Specialist nursing / home adaptations etc.
4.2 On a sliding scale ranging from low to high, lump sum payments should be awarded in the event of one or several of these factors; and in addition, in the most severe cases, the current high rate DLA care component could be supplemented to cover additional care costs. These arrangements should be open to periodic review to monitor any deterioration in the patient’s condition. There should be a central fund to provide any immediate/future home adaptations. Immediate admission of medical error could in certain cases, reduce unnecessary long-term damage to the patient and subsequently limit the drain on resources.
4.3 It may be necessary to introduce patients to the concept of an extra, small, universal insurance premium, related to income, which would cover everyone for compensation in the event of being damaged as a result of a medical error.
SECTION 5. The Victims Compensation Fund:
Administration Structures Return to Contents
5.1 First and foremost, there should be a legal obligation on health professionals (i.e. written into contracts of employment), to inform patients of any treatment related damage. Trained Clinical Liaison Officers (CLO) to be employed by Trusts and Health Authorities. The person responsible for, or anyone aware of the error or near miss will have a statutory obligation to report to the CLO as soon as possible. It should be made a criminal offence to “turn a blind eye” when patients are knowingly being maimed and killed (re: Bristol, Ledward, Neale, & Shipman cases). Individual responsibility is a moral obligation. The CLO should issue a standard adverse incident form to everyone who is party to / or witness of the incident. An investigation should then ensue immediately to establish the cause and accountability for the incident, at the same time necessary tests should be taken to assess the damage done to the patient. A similar procedure should be followed in the event of misdiagnosis, and should tests indicate that damage has occurred, an assessment to be made and the patient to be fully informed.
5.2 Should it come to light at a later date that the patient’s condition is deteriorating or symptoms are changing (confirmed by tests and monitoring etc.) and it is known that these are the result of the adverse clinical incident, then it should be obligatory to inform the CLO. In instances when consultants are not willing to acknowledge that there has been deterioration in the condition of a patient, which is related to a medical error, then this patient should have a right to report the matter to the CLO. A request can be made for the presence of the CLO at the next consultation.
5.3 At present, critical incidents, which have caused iatrogenic damage, are currently being recorded, but there is no obligation to inform patients. This is indefensible and unethical. Patients have a right to know when they or their child have been a victim of a medical error, which has caused damage. Furthermore, any patient who believes he/she has been the victim of a medical error, or parents in the case of a child, should have the right to report the matter to the CLO for a thorough investigation, and have their concerns taken seriously.
5.4 The main aim of the NHS Litigation Authority appears to be to block and defend justifiable claims thereby reducing compensation costs to the NHS. The consequences of this denial and cover-up mentality to the country as a whole have been dire:
Unacknowledged trauma to the victims and their families
Deterioration of the victim’s health
Loss of earnings
Unnecessary legal cost to the tax-payers
Incompetent and malpractising health professionals remain unchecked.
5.5 The NHS Litigation Authority should be renamed and restructured to become the ‘NHS Compensation Assessment Unit’. (NHS CAU) At present the people in this organisation are fully aware of the widespread iatrogenic neglect/scandals throughout the NHS. The very fact that this huge bureaucratic office block has been established in London with a sister block in Leeds is indicative of the magnitude of the problem of medical errors and iatrogenic damage: it currently operates to protect / defend those causing the mistakes.
5.6 It is envisaged that the NHS CAU could operate on a two-tier principle. At the first stage the damage is assessed and the patient is informed and given counselling if needed. The level of compensation is determined from a national tariff. This should take a relatively short time to process. Most cases could be settled in 3 to 6 months. A maximum time limit of say a year should be imposed for the most complex cases. In the event that the patient is dissatisfied with the final offer made at the first level, they should have the right to progress to second level ie. Mediation. The patient would be involved in drawing up the terms of reference. It would be necessary to have a time limit on this stage and it should be binding on both sides. The patient should be no worse off after mediation than before. Genuine and appropriate specialist remedial medical care for the iatrogenic patient will be guaranteed.
SECTION 6. Quality Control and Accountability Return to Contents
6.1 When a medical error has been reported, then a full investigation should ensue to establish the cause of the error whether it is human or mechanical:
Faulty equipment
Drug overdose/wrong drugs prescribed
Inadequate training/supervision
Tiredness/overwork/personal stress/ill health (physical or mental)
Incompetence/ negligence/malice /sociopathic behaviour
Misdiagnosis
Inappropriate treatment (medical / surgical / radiological)
6.2 SIN does not advocate a “no blame culture” and believes that “blame” is an emotive word that should not be used. “To blame” means to hold someone or something “accountable” or to hold someone or something “responsible”. To advocate a “no blame culture” actually means advocating a culture of no responsibility, a culture of “no accountability”. Which respectable profession could ethically demand this and expect the public to accept it? We are not proposing vindictive sanctions, but as the medical profession does have the power of life and death, it is only reasonable that such a profession is carefully monitored and controlled. SIN and, we believe, most patients, wish to see a culture of personal responsibility and accountability with sensible remedial actions/sanctions taken when things go seriously wrong and patients being fully informed. The following are a variety of possible remedial actions / sanctions which could be taken depending on the cause of the error:
Reappraisal of any faulty equipment or procedures.
Appropriate medical care for the health professional, if ill health were found to be the cause
Reduction of work schedule, if overload were found to be the cause
Retraining
Greater supervision (consultants taking responsibility for this)
Warrning - verbal
Reprimand - written
Fines
Demotion
Career put on hold for a specified time limit
Suspension
Striking off for life ( any senior malpractising health professional will be tainting junior staff)
Criminal charges where necessary
6.3 All health professionals involved in medical mistakes should have counselling available, and should also be obliged to meet the patient in order to apologise, if this is what the patient wishes. This would be therapeutic for both the patient and the health professional. Patients should be issued with a report as to the outcome of the investigation and the action taken to prevent a similar reoccurrence. All seriously damaged patients and the relatives of those who have died should also receive counselling.
SECTION 7. Conclusions :
Changing the "Mindset" of 50 Years Return to Contents
7.1 The present structures to protect the patient: The NHS Complaints Procedure 31, the legal route 32 and the GMC 33 have proved to be deeply flawed systems, as demonstrated in recent critical assessments of them. They have, without doubt, failed to protect the iatrogenic patient and therefore failed to maintain standards of quality control and accountability. In the course of the present government’s time in office, several new agencies have been set up to specifically address the national concern over the present state of the NHS: National Institute for Clinical Excellence (NICE), the Commission for Health Improvement (CHI), National Patient Safety Agency (NPSA), National Clinical Assessment Agency (NCAA). It is to be hoped that these new initiatives will soon include an Agency along the lines of SIN’s suggested ‘NHS Compensation Assessment Unit'. Such a unit will acknowledge that medical errors do occur and the pain and loss suffered by the victims deserve to be addressed and compensated to reflect the damage sustained. Parts of Western Europe have accepted many years ago that medical errors occur and the rights of the damaged patient have been recognised through the setting up of statutory compensation schemes.
7.2 The setting up of any future system must take into account views and experiences from those personally and intimately involved with the current flawed systems. Patients will be the users of the new schemes and should therefore participate fully in the drafting of the proposals for the end product. Only by drawing on ideas from the disillusioned users of those systems currently in operation can a new civilised and democratic system be ensured. Any new initiative must have the powers to include, retrospectively, badly damaged victims of the present system.
7.3 A victim’s compensation fund will transform the present culture of denial and cover-up to one of openness and honesty when mistakes are readily admitted. Irrespective of the cause of iatrogenic damage the patient has a right to the truth and should receive appropriate compensation. The establishment of such an initiative will be a milestone in the history of the NHS and will revolutionise the equity of the doctor/patient relationship, bringing the UK into step with its European counterparts and the NHS into the 21st. Century. All this will mean changing the “mindset” of 50 years. This new approach to iatrogenically damaged patients is imperative to ensure that the basic human right to adequate health care is upheld. (Article 25 Universal Declaration of Human Rights, UN 10.12.48)
© February 2002
GM Bean & M. MacRae
Co-Directors & Founder Members Sufferers of Iatrogenic Neglect (SIN)
Footnotes
31 NHS complaints system flawed : see footnote numbers 5 – 10 and paragraphs 2.01 – 2.06
32 legal route flawed: see footnotes number 12-17 and paragraphs 2.07 – 2.17
33 GMC flawed: In the year of 2000 complaints only 13 doctors struck off amounting to 0.65 %
The Guardian, June 2nd. 2000 “ Consultants call for reform of GMC”:. “at the BMA’s Annual Consultant’s Conference a unanimous motion was passed of no confidence in the GMC and Peter Hawker , Chairman of the Consultants and Specialists committee accused the GMC of failing to protect patients and to guide doctors….”
The Health Which? October 1999: Special Report: “The GMC – is it working for patients?” – very critical.
BMA News Review, 11th. March 2000 page 9 : “Disillusioned doctors say GMC is letting down the profession.”
SECTION 8. Appendices: Torts applied in Medico-legal Cases Return to Contents
Roe v. The Ministry of Health (1954)
This must have been one of the first cases to be brought against the fledgling National Health Service and was re-examined recently in a documentary on Television Channel 4 programme. Mr. Roe became paralysed following a spinal injection. That afternoon two other patients in the hospital also lost the use of their legs after the same invasive treatment - all injections were performed by the same doctor. When the case finally came to court, the defence was that the glass ampoule containing the spinal injection had become contaminated through “invisible cracks”. Although this was a scientifically unsound and unproven theory, it was accepted by the court and Mr Roe was denied any compensation because technical negligence could not be proved. The doctor was exonerated from all responsibility. Unfortunately, this became a bench mark and paved the way for other similar unproven and unscientific defence theories to be used in medico-legal cases. Irrespective of this extremely dubious theory, SIN would maintain that Mr Roe should have been compensated because he had been damaged during a course of treatment.
Bolam v. Friem Hospital ( 1957)
“Where it is alleged that conduct is negligent the standard of care is to be ascertained by reference to what is known as “professional practice standard” or the Bolam test, Bolam v, Friern Hospital Management Company [1957> 2 All E.R.118. Health professionals will generally not be held to be negligent as long as they comply with a standard supported by a responsible body of professional practice, even though other health care practitioners may disagree with that approach. Even if the conduct of a health professional can be shown to have fallen short of the Bolam test the litigant may still fall at the hurdle of causation because he cannot establish that it was the negligent conduct of the defendant which caused the harm which he suffered”. (Page 145) 34.
In Canada, the Bolam test has been rejected and common sense prevails, for here the Law maintains that a body of medical opinion must be logically sustainable. Coyne J’s arguments in the Supreme Canadian Court explains the necessity for this approach for otherwise if any body of medical opinion were to be accepted without scrutiny, health professionals ”….could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice…” Also Lord Browne-Wilkinson inferred that …” in rare cases it would be negligent to act in accordance with professional opinion which is not capable of withstanding logical analysis…” 35
SIN criticised the illogical Bolam Test in its Paper “ The Patient’s Voice for Equity” published in June 2000 (see page 8 section 6.2). and the Bolam & Sidaway rulings at its Conference in Sept. 1999.
Sidaway v Bethlem Royal Hospital Governors (1985)
The issue of Informed Consent “The Bolam test”, applicable in the context of general liability in medical negligence, was adopted by the House of Lords in the context of the disclosure of information regarding treatment in Sidaway v. Bethlem Royal Hospital Governors [1985> 1 All E.R.643. Thus, information about risks must be disclosed in accordance with the standard expected of a responsible body of professional practice.” (Page 265) “Because the law of consent, like much of health care law, has been developed by the courts, rather than Parliament, it follows that the rules have emerged in the context of specific disputes, rather than being drafted to deal with general issues. This sometimes makes it difficult to predict how they should be applied in different circumstances. Another problem with judge-made law is that it can be especially difficult to distil the principle on which the rules are based, especially when judges in the same case give different accounts of them. This is particularly problematic in relation to the principal case on disclosing information – Sidaway v. Bethlem RHB … in which it is virtually impossible to establish any clear ratio. (Page 318) 34.
In the opinion of SIN the 1985 Sidaway Judgement, involving the extent of a doctor’s duty to inform the patient of inherent risks of a proposed treatment,only exacerbated the consequences of the iniquitous interpretation of the Bolam Test. The courts in England have until now adopted what appears to be an incredibly paternalistic attitude to what Lord Woolf suggests has come to mean “that patients are entitled to know only what their doctor thinks they should”. Both Canada and Australia have a much more patient orientated view towards informed consent. In Canada doctors are under a duty to provide patients with all relevant information relating to their health care, surgical or otherwise, together with the consequences of no medical intervention 35.
Footnotes
34 Jean McHale, Marie Fox, John Murphy, Health Care Law: Text, Cases and Materials, 1997. Sweet & Maxwell
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