The addition of medical negligence to the Law Society's list of specialist panels was approved by the society's council in June. The move followed criticism from various quarters about the way solicitors had in the past handled medical negligence cases. The cost to the Legal Aid Board and low success rates were particular areas of concern.
It is against this background that Anthony Barton, a solicitor and qualified medical practitioner, has set up a specialist medical legal consultancy.
In recent years there has been an explosion in medical law, he says, both in terms of straightforward litigation, and in the wider arena of medical regulation and pharmaceutical law and the increasing influence of the coroner's court as a court of record.
More and more doctors are recognising this and, wishing to contribute, are qualifying as barristers or solicitors. Dr Barton began reading law at Oxford and switched to medicine after two terms. He worked as a junior hospital doctor, then became a solicitor and worked for several years in the healthcare department of the City firm McKenna & Co.
One of the advisers to Dr Barton's consultancy is also qualified in both disciplines. Margaret Puxon is a Queen's Counsel and a former consultant in obstetrics and gynaecology who has recently retired after 30 years' practice at the Bar. The other adviser is a general practitioner, Penelope Elphinstone.
Dr Barton has launched into practice on his own account because, he says, the time has come for an integrated approach to medical litigation. 'Medical litigation cases are complex and the legal and medical issues are not readily separable. Such cases are ideal for an approach that straddles both disciplines, and some law firms are recognising this by recruiting medically qualified solicitors.'
His consultancy, Dr Barton says, aims to offer an integrated approach by combining the elements of independence, objectivity and excellence. Potential clients include health authorities, drug companies, medical institutions and insurers, as well as law firms wanting to buy in specialist services. Inquiries from members of the public are also welcome. 'We can then refer them to a suitable law firm which, if it thinks appropriate, can use us for specialist advice.'
It is as yet, however, early days - the consultancy began life only two months ago. Dr Barton notes, without surprise, that the idea, because new, has met some resistance from the legal profession. 'But there is an irrestible movement towards increased specialisation, which is recognised by the leaders in the field,' he says.
A medical legal practice also addresses the concerns cited above about cost to the taxpayer and low success rates. 'A major weakness in the public funding of such cases is that the board relies on advice from the claimant's lawyers as to the merits and viability of a claim,' Dr Barton says. 'It is curious that the very people who have an interest in the claim have a say in its funding. As the claimant's lawyers have a financial interest in advancing the claim, their advice to the board is not independent by definition.'
The public funding of medical claims needs to be based on investigation and advice that is truly independent and objective, Dr Barton says. The board, he adds, would do well to use an outside agency to test the merits of a claim before granting legal aid on the advice of the plaintiff's advisers.
The world of alternative dispute resolution is also recognising the benefits of this kind of approach. The Chartered Institute of Arbitrators, Dr Barton says, is considering a medical specialist panel. 'It's an excellent idea, because arbitration lends itself well to the field.'
So far as he is aware, his consultancy is the first of its kind in the United Kingdom, although there are several in Canada and the United States. This will change over the next decade, he believes, when the legal profession will polarise into the megafirm and the niche practice, as more and more specialist departments question the rationale of maintaining the massive overheads of belonging to a large partnership.
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