A response to The Times' article "Trying to cure cancer could land you in court"

28 June 2013

In Lord Saatchi's article in The Times, he stated that clinical negligence law stifles medical innovation which has led to an inertia in the treatment of many conditions including cancer. He argues his Medical Innovation Bill will create a better research environment than at present.

The differentiation he makes between reckless experimentation and responsible scientific innovation is commendable. Also Lord Saatchi’s description of cancer is heart-breaking. The point that I must take issue with, as a clinical negligence lawyer, is the suggestion that the law of negligence has to date been a block to finding a cure to cancer.  I think this non sequitur risks devaluing the debate.  In order to find an eye catching headline Lord Saatchi has jumped upon a fashionable band wagon of demonising clinical negligence litigation. 

As a claimant clinical negligence lawyer of many years’ experience, I tire of the constant need to explain that we are just part of the process: our job is to help clear up after the medical profession have made mistakes.  We serve the same public.  Many of us are truly committed to the National Health Service, inspired by the skills of doctors and keen supporters of medical innovation.

I have seen no evidence that clinical negligence litigation is restricting medical research or innovation in the UK.  Indeed, it is difficult to envisage that a claimant could bring a successful clinical negligence claim in relation to a carefully considered decision by a doctor to try (with the patient’s consent) a novel treatment which could be in the patient’s best interests.

Instead, the everyday experience of my practice involves bringing claims on behalf of families who have lost a loved one to cancer because of a failure by a medical professional to provide treatment of an acceptable standard (for example, not acting on their abnormal test results and provide timely treatment that would have altered the course of the disease).  It is worth mentioning that many times the mistake is an “honest” error by an overworked clinician trying to do his or her best in very difficult circumstances – it is often a tragedy for both the clinician and the patient, and both, in a sense, are victims of the inadequacies of the system.

I am frustrated by the ease with which the public vilify medical lawyers when no one questions the right of the paralysed crash victim to seek compensation from another driver.  The ethical position of claiming in civil law against a medical professional whose negligent practices have had an equally devastating outcome is directly synonymous. 

The inconvenient truth is that doctors sometimes get it wrong; wrong by crass error, carelessness or, occasionally, wrong by the hubris of dangerous experimentation.  This is something that the public (or possibly the media) do not want to face up to it would seem.  Again there is a mismatch here: the media for all its frenzied reporting of all the shortcomings of the NHS can provide no solutions or redress for the affected patients and their families.  Civil law, albeit ravaged by legal aid cuts and changes to the funding of claims, can.

The law as it is currently framed does set clear guidance for responsible behaviour.  It does not force all doctors to doggedly adhere to one particular practice but it does require them not to act in way which is illogical or would be considered unreasonable by all other doctors in their field.  I would argue that the case law has evolved in such a way that it is possible to have good responsible and innovative treatment, provided appropriate consents are obtained.  That said, there is never any harm in clarifying the position and to that extent Lord Saatchi’s bill may be welcomed. 

My plea is that we avoid muddling the issues here.  Medical negligence law seeks to protect the public from “reckless experimentation” just as Lord Saatchi would have his Bill do, creating an environment where safe research can flourish. However, it is equally important that a basic standard of care is upheld for all patients.  By blurring the issues in a way that permits medical negligence lawyers to be vilified, Lord Saatchi may, inadvertently, undermine one of the key mechanisms of achieving accountability that, in turn, prevents bad medical practice. 

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