Fair deal for doctors and patients

Only urgent reform of the clinical negligence compensation system can stop doctors practising defensive medicine, writes Frances McCarthy

Members of the Association of Personal Injury Lawyers (APIL) have a clear idea of what is wrong with the clinical negligence compensation system.

As lawyers, we look after those struggling in the aftermath of a medical accident and the Department of Health's plans to reform the system cannot come soon enough.

Some of our proposals to the chief medical officer will undoubtedly save costs, but we are adamant that emphasis on costs must not be the basis of reform.

What we hear time and time again from our clients is that they want to understand what happened.

They want an admission of fault.

They want to hear an apology.

Such clients do not litigate solely for the money; they also want to try to find out what happened.But the culture pervading the medical profession is that doctors must never admit a mistake.

This causes injured people extreme frustration and stress, and doctors become so nervous at the prospect of litigation they begin to practise defensive medicine.Cases are frequently defended to the courtroom door - a waste of resources better spent on safety procedures and placing greater emphasis on prevention of accidents.

The introduction of proper and co-ordinated risk management, with an emphasis on learning from accidents and 'near misses', would improve the safety record of hospitals.

The NHS must learn from its mistakes.

Not all accidents will be prevented, so it is vital that the inadequate complaints system is reformed.

Studies reveal many victims are unhappy with the way a complaint has been handled; initial investigations are often poor and complainants often have difficulty gaining access to information, including their own health records.

Complaints handlers are inadequately trained and there is poor communication between staff and patients.

The result is that a patient who would otherwise never dream of litigating is often driven to do so to obtain any satisfactory information about his case.

Doctors must be bound by the same duty of candour as solicitors - this will do much to improve the destructive climate of suspicion and ill-will which develops when a patient can get no explanation or apology.

We know patients want to continue to trust their doctors.

They can understand a mistake but a cover-up is hard to forgive, and greater openness is far more likely to reduce litigation than initiate it.The right to go to court must not be taken away from any victim of negligence, regardless of the value of the claim.

However, a reformed complaints system would help people - particularly those with smaller claims - who do not want to be forced into litigation.

It would ensure complaints are handled in an independent manner, thoroughly investigated, the truth discovered and a full and clear explanation given with an apology where appropriate.

This would help ensure accountability and steps can be taken to learn from mistakes.APIL also proposes financial compensation up to a maximum of 10,000 should be available through the complaints system.

Currently, a patient has the trauma and expense of legal proceedings even if the claim is only small.

Some trusts make ex-gratia payments but there is no consistent or established procedure for doing so.No fault schemes are not the answer.

The very nature of any tariff-based scheme means accident victims do not receive the proper amount of compensation to which they are entitled by law.

We are also exploring other ways of receiving damages, such as periodic payments, provided claimants always retain the freedom to choose other types of payment if more appropriate.APIL is committed to protecting the interests of claimants.

It is vital that like-minded organisations continue to put across their point of view and ensure that reforms are not driven by costs.Frances McCarthy is president of the Association of Personal Injury Lawyers