Is there a cure for professional negligence?

Legal action over medical malpractice makes the news, but out of the spotlight lawyers are themselves facing more litigation.
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The Independent Online

There can be little doubt that there is greater public and political interest in medical malpractice than there is in negligence claims against solicitors. Harold Shipman's conviction for murder, the Bristol heart scandal and the case of the disgraced gynaecologist, Rodney Ledward, have all served to heighten concern both within and outside the NHS. The same can hardly be said of the legal profession whose members, despite facing many thousands of claims for incompetence each year, seem to escape the headlines which often greet individual doctors and hospitals.

There can be little doubt that there is greater public and political interest in medical malpractice than there is in negligence claims against solicitors. Harold Shipman's conviction for murder, the Bristol heart scandal and the case of the disgraced gynaecologist, Rodney Ledward, have all served to heighten concern both within and outside the NHS. The same can hardly be said of the legal profession whose members, despite facing many thousands of claims for incompetence each year, seem to escape the headlines which often greet individual doctors and hospitals.

Why this should be so is, perhaps, obvious; the results of clinical negligence are far more startling and often permanent than the consequences of solicitors' errors.

That does not mean, though, that there are not comparisons which can be drawn between the two professions, both of which are experiencing fundamental changes in the approach to reducing their exposure to lawsuits.

It is nothing new to suggest that where the US goes, the UK will not be far behind. The "litigation culture" has winged its way across the Atlantic and has fuelled the boom in claims against doctors and solicitors such that both are now very big business. A recent National Audit Office report estimated potential liabilities for clinical negligence in 1999 at a staggering £2.4bn - a massive increase of £600m from the previous year and equating to an annual drain on NHS resources of over £1bn.

The lawyers fare a little better. Their soon-to-be-disbanded mutual insurance company (the Solicitors' Indemnity Fund: SIF) paid out over £260m to disgruntled clients in 1999 and £40m to their lawyers in fees. Unfortunately, at least for the purposes of this article, the statistics do not reveal what proportion of those figures relate to errors made by solicitors in dealing with clinical negligence litigation!

So what is being done? The starting-point must be within the professions themselves, and here the lawyers seem to have got the jump on the doctors. It was only in the spring that the General Medical Council published its consultation paper on "revalidation". The scheme will involve every doctor in the UK undergoing an annual appraisal together with an assessment every five years by a team of doctors to see if they are fit to continue to practise. Doctors found to be failing to maintain their skills or not keeping up to date with medical advances could be struck off.

While anything new is bound to be met with some suspicion, BMA chairman, Dr Ian Bogle, has said: "Patients have the right to know that every doctor on the medical register is professionally up to date, competent and safe." Not surprisingly, the plan has been welcomed by the Consumers' Association. Its director, Sheila McKechnie, commented: "It is a significant step towards ensuring that doctors are safe and fit to practise."

At the same time, the NHS Executive is working on plans to identify and record the underlying causes of complaints and the lessons to be learnt. In November it published 18 control standards, including one for the implementation of risk-management systems, and it is also proposing a new framework for measuring risks associated with clinical systems.

In a similar way, throughout the Nineties, the Law Society and SIF concentrated a substantial amount of time and resources on risk management, aimed at identifying and reducing the most common causes of claims.

Ongoing professional training and development became mandatory for all solicitors. Last year, in what has been described by Elizabeth Mullins, the managing director of SIF, as a significant step forward for risk-management, all firms were for the first time obliged to do their work "in a manner conducive to the prevention of claims".

One suspects that the general public would take that as a given, but at least there are now some teeth behind the statement, the ultimate sanction against failing practitioners being disciplinary proceedings or striking off by the Law Society.

A further encouragement to lawyers to put their house in order comes this September when SIF is abolished and law firms will have to face the rigours of obtaining their insurance on the open market. The ultimate sanction then becomes the premium payable for negligence cover.

It has been suggested that 700 of the country's 9,000 or so law firms may be unable to obtain cover because of their appalling claims records. If they do not have insurance, they cannot practise.

Despite the best efforts of the GMC and the Law Society, unless one adopts a no-fault compensation system of the type recommended by the Pearson commission more than 20 years ago, there will always be errors and, likewise, claims for compensation. And if there are claims for compensation, there will be lawyers looking to earn fees by litigating those claims.

Simon Gibson, partner, professional indemnity department, and Lynn Turner, assistant solicitor, healthcare department, are both at the City law firm Kennedys