This man was twice a victim: first, of medical negligence, second, of the law

Lord Woolf's civil justice reforms aim to change the expensive, unfair system that forced Michael Bolger to spend four years battling for compensation. By Patricia Wynn Davies
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The Independent Online
There must, surely, be something dramatically wrong with a system that subjects a victim of devastating medical negligence to the excesses and stresses of the legal system for almost six years, and still leaves him nearly pounds 100,000 out of pocket and with a strong sense of grievance.

After no fewer than 60 reports over the decades into improving civil justice, none of them acted upon, that was the familiar experience of Michael Bolger, once a senior personnel manager with ICI, now a paraplegic who works as best he can as a part-time consultant from his wheelchair - partly to occupy his mind, and partly take his mind off the constant pain in his legs.

Mr Bolger is not unique. There are thousands more cases of all kinds dragging slowly through the civil courts with all that entails in cost and mental anguish. An unresponsive system has fallen into disrepute, and has lost the confidence of the public. Such are the pitfalls that many people, including those with some financial means, view the bringing of a claim as hopeless, or they abandon it in despair as rising costs or delays start gnawing away at any potential benefits.

The compensation that eventually emerged at the end of the process for Bolger - pounds 1.6m - was vital in reconstructing a shattered life around his disability and in planning for an uncertain future. But, as so many victims of serious negligence will testify, the final result is only part of the story.

Compensation, as the description denotes but which is sometimes forgotten, is in no sense a windfall, and is at best an imperfect means of attempting to make up for horrendous losses. Pursuing litigation to obtain it generally, probably universally, serves to reopen the trauma on a different front. Most of Bolger's pounds 1.6m will go on further adaptations to his house, more equipment to cope with the daily vicissitudes of life as a paraplegic, and as time goes on, on a full-time residential carer.

Like Lord Woolf, the Master of the Rolls, who unveils his civil justice reforms today, Bolger argues for nothing less than a complete change of culture. The present system seems to dictate that well-resourced defendants, and in Bolger's case a defensive medical profession, must do everything possible, including throwing large amounts of money at the problem, to hamper legitimate claims rather than tackle the reality, which must eventually come, of apportioning responsibility.

Like Lord Woolf, Bolger has concluded that the present civil law system is too slow, too expensive, too complex and unfair. His experience is replicated in case upon case, of varying complexity, in all branches of the civil law up and down the country.

Today's package will be the most radical set of reforms ever suggested, and if implemented as a whole it will have a profound impact on the process of justice. It all depends on the detail, the resources for the extra judges and technology that will be required and, as important, a massive change of attitude among the legal profession.

For Bolger, his wife Christine, and his three sons, the losses were profound indeed. When he was hospitalised following a road accident, an epidural for pain relief caused a large abcess which medical staff failed to detect before it had caused serious damage to his spinal cord. He suffered post traumatic stress disorder and needed counselling for four years. Faced with such a catastrophe, he believed he had no choice but to sue the health authority, a senior consultant and the insurers of the car that struck him in the accident. They denied liability until the last possible moment.

It began one Friday night when the Bolgers' car was hit on the A3. He had an unpleasant, though conventional, injury to his sternum from a seatbelt. He was discharged from hospital after a week, but had numbness in his right foot, difficulty in walking, pain in his abdomen and soreness at the site of the epidural injection. Every hour that was passing was clocking up lasting physical damage. The abcess that was eventually found between his shoulder blades was the size of a pancake.

The ghastly business of resorting to the law was about to begin. As Bolger tells it, the grief comes on two levels - the emotional, which the legal system as such does little about, and the practical, the hard, painstaking business of holding those responsible to account.

Now that he is the contact point for Surrey and Hampshire in a national network being established by Action for Victims of Medical Accidents (the support group for victims and their families), Mr Bolger speaks from the experience of many as well as his own.

"There would be the comment: you do know you are taking money from the NHS; whatever you get will have to come out of money for patients' treatment," he says. "What are you supposed to do? Just wheel away and take it?"

As he sees it, there are no "victories" for plaintiffs, just a remorseless grind as they juggle the business of preparing for the ordeal of a trial with adjusting to the awful reality of disablement.

"Almost from the moment you realise that you are compelled to pursue litigation, and the defendants refuse to admit liability, you enter a world that is very alienating, very impersonal, very dismissive. The defendants are pushed into being adversarial. The doctors are defensive. And nobody wants to know about your action, your action which you think is hugely important. You feel undervalued because every single penny has to be fought for."

And what about the hidden victims? The legal process is too blunt an instrument to even begin to tackle the effects on families.

"Christine's whole life changed," Bolger says. "Her expectations about what we would do as a couple, her own routine and her ambitions, were shattered." The couple's three sons, now 30, 25 and 21, all suffered: "One gets married totally out of the blue and then gets divorced. One won't set foot in a hospital. One had a dreadful year at college, angry and disruptive. It happens to so many families."

No aspect of the current legal system makes any of it any better. The sole redeeming feature was that, unlike many others who are too well off for legal aid but too poor to take the financial risk, he was able to contemplate funding the claim. His earnings package at ICI had been about pounds 90,000. With his lump sum and the sale of the family cars he began proceedings, but had to change his solicitor after 16 months for someone less out of their depth.

Richard Vallance, of the London solicitors Charles Russell, had to begin all over again.

No fewer than five different judges dealt with the various aspects of the case as it ground through its stages, one in relation to costs alone, which itself took 18 months to resolve. Nine medical experts produced reports, four of whom were to give evidence in the trial. Seven more experts prepared opinions on the amount of damages. There were nearly three dozen experts for both sides, gearing up either to justify every penny or to pare down relentlessly any claim.

The trial was listed for four weeks, but the actual hearing only lasted three hours because, at that point - four years after the accident - there was an unconditional admission of liability on the part of the health authority and the consultant. Bolger got his pounds 1,675,000. But he had spent pounds 310,000 in legal costs, pounds 98,000 of which he was unable to recover from his opponents. The point is, says Bolger, that so much of it was unnecessary. "The judge said the case should never have come to court."

But there had never been any without-prejudice negotiations about an out-of-court settlement. Bolger supposed that they were hoping he would give up and run out of money. It all seemed to be going at the pace of the slowest, most recalcitrant lawyer. The final details of the legal process were finally concluded six years ago last Friday.

Just before the trial was due to begin the defendants had paid a sum into court representing about two-thirds of what he eventually secured. If he had failed to beat it at trial he would have been liable to pay all the costs of both sides from that point onwards.

"It was a very unnerving experience," Bolger says. Torn, he eventually felt he could not accept the offer. "My biggest fear is that I am still only 53. I didn't want to end up in old age short of the essential funds."

For the reality of his injuries cannot be simply summed up in one neat word: paraplegic. The realities for paraplegics are things like double incontinence and for men, inability to ejaculate. Because he suffered an "incomplete" injury, Bolger also has the worst of both worlds, paralysis and pain, as the brain attempts to message the legs and feet through a damaged spinal cord. The pain is constant and unbearable, he says.

After trying acupuncture, electro-therapy and all the drugs known to experts, he has accepted that his pain gates just won't shut down. Under the guidance of David Grundy, who heads the Duke of Cornwall spinal treatment centre at Salisbury District Hospital, he is now weaning himself off his medication, which was affecting his ability to work. But as he gets older and weaker his ability to cope will deteriorate.

In complex cases such as this, Lord Woolf is expected to propose a new era of "case management", to ensure early and comprehensive discussion of what is really in dispute, what the costs are likely to be, the experts needed and the timetable. The main objective is to encourage early settlement, or if that fails bring cases to trial as speedily and economically as possible.

Bolger, who wrote a lengthy memorandum to Lord Woolf in the run-up to his report, is aware of some of the criticisms that have already been advanced. "I hope to goodness that we don't go to the other extreme, with half-baked settlements," he said. "But I had one of the best legal teams, and one of the most supportive GPs, and it still took that long.

"We need doctors who are less defensive, lawyers who are more accountable and a legal system that is much more fair and just to victims.

"The test of the quality of a country's legal system is the way it deals with injuries to its citizens, particularly in its hospitals. If you can't get that right, what hope is there for the rest?"

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