If it hurts, sue - or at least ask why

We may not share the US obsession with legal redress, but we are shaking off our customary deference
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The Independent Online
The spectre of an American lawyer pressing his card into the hand of a heavily bandaged hospital patient and whispering "call me" can send shudders down British backbones in business, the professions and even the courts. "Only-in-America" tales of record damages - such as the octogenarian who took home $640,000 after her McDonald's take-away coffee proved surprisingly scalding - provoke gasps and sniggers.

But US lawyers, 870,000 of the most reviled and envied figures in that country, have been dealt at least a temporary setback on their lucrative road to damnation. The Republican-controlled House of Representatives has just approved a series of reforms to American civil law. The Common Sense Product Liability and Legal Reform Act is an element in the Gingrich crusade dubbed "Contract with America". It puts a cap on punitive damages in civil lawsuits and "pain and suffering" settlements in medical malpractice suits. Together with a tightening up of the conditions necessary to bring product liability cases ("conscious and flagrant" disregard to consumers' safety, a time limit of 15 years from the product launch and a scheme to make the loser pay) it's a significant reverse for the steady revenge of the underdog.

All these reforms have now to pass through the Senate, where the Democrats will oppose them. President Clinton will be reluctant to sign the bill in its present form and the ingenuity and muscle of the legal profession to fight this unwelcome curb on its activities should not be underestimated. All the same, the success of these reforms so far demonstrates the appeal of the Republicans' attempt to boost a sense of personal responsibility and beat down the "if it hurts, sue" mentality.

Already the cry has gone up from consumer groups in the US that the new measures place consumer safety in peril. "This lethal one-two punch will lead to more dangerous products on the market," claims the alliance of consumers' groups. It points out that Americans can no longer rely on federal agencies for protection; now Congress wants to restrict the right of consumers to protect themselves through the courts. Organisations such as Ralph Nader's Public Citizen fear a backlash against the politics of consumer rights that has been so powerful since the 1960s.

What muddies the argument, however, is concern that consumers may also be suffering the fall-out from a highly litigious environment that was designed to protect them. Professional indemnity insurance premiums creep upwards; certain professional areas are deemed so risky that trainees fear to specialise. And everyone hates the lawyers.

In Britain things are different, but changing. There are no punitive damages, only compensation. Juries do not decide awards except - famously - in cases of libel or wrongful imprisonment. Lawyers do not work, as in America, on contingency fees taking up to 50 per cent of the damages awarded. Plaintiffs here must weigh their chances of success against the risk and cost of failure. As legal aid withers away, that calculation deters many people.

Judges make awards for compensation - so much for a missing limb, so much for permanent disablement and so on. The general trend may be for gently increasing amounts, but even lawyers admit that these awards are often stingy. As a Law Society officer put it, judges are less likely than juries to take a "Robin Hood" attitude.

But Robin Hood is what the Consumers' Association wants more of. Encouraged by a recent European directive, it is seeking to introduce representative actions for groups of people who may have suffered from one defective product or service. Lord Woolf's review of court proceedings, whose preliminary findings are expected this spring, may well back that suggestion. In addition, over the next few months, a "conditional" fee system will be brought in for certain cases - personal injury and insolvency proceedings. Like the American contingency arrangement, this is a no-win no-fee deal, but unlike it the fee is fixed. People who couldn't until now afford to go to court might then risk it. So are we headed for an explosion in claims? Could we indeed follow the American way of litigation?

There's little chance of that. But what we are seeing here is a marked cultural shift. The professional is no longer the God-like figure in white coat or pin-stripe; Dr Finlay might now find his diagnoses questioned by the crofter's wife, primed by her forays into the virtual reality casebook of her CD-rom. Ironically the Government, with its insistence on charters and competition, has itself contributed to a new enthusiasm to seek a second opinion - whether from doctors or lawyers or accountants or surveyors. People will no longer bear their misfortunes stoically, touching their forelocks to their book-learned betters. If there's disappointment, there's surely someone to blame.

Cases against professionals are on the increase. The Solicitors' Indemnity Fund last year paid out £200m in claims. Accountants face suits for hundreds of millions over disputed audits. The insurers say professional indemnity claims are rising across the board - and so, too, are the premiums.

The most contentious area of all is medicine, where certain specialities attract litigation. According to the Medical Defence Union, one in five indemnity payments in private practice is for obstetrics and gynaecology, with cosmetic surgery and orthopaedics also high on the list. As one obstetrician remarked, "It's our own fault - we were too reassuring. We told everyone they had a right to expect a perfect baby, a perfect childbirth."

Claims have been growing by up to 25 per cent in each of the past five years. NHS trusts bear all malpractice costs on their own, and the delay - up to six years - between an incident and settlement is for them a financial time-bomb. This year they'll be paying out about £150m; the fear is that one extraordinary claim could bankrupt an individual trust. Alarmed by this prospect, the Department of Health has set up a mutual pooling fund for trusts, which is due to kick into action on 1 April. A new journal, Clinical Risk, suggests "adverse events" following treatment (that is prolonged spells in hospital, readmission or most adverse of all, death) are far more common than supposed. It outlines for the medical profession a strategy to reduce preventable accidents, minimise the chance of a claim being made and control the costs of those claims that are made.

All this may sound like so much back-covering, but a defensive strategy might improve the deal that the man or woman in the street, or on the operating table, gets. By scratching away at the mystique of the professions, litigants do at least get the people in charge to admit that mistakes are made. The next step is to find out how many and why. For all their ludicrous excesses, American ambulance chasers could teach us a thing or two.

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