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'No Fault' Compensation For Medical Accidents JOHN HAVARD, CBE MA MD LLM MRCP, Barrister-at-Law Commonwealth Medical Association, BMA House, Tavistock Square, London We1 H 9JP
The objective of 'no fault' compensation in the context of health care, is to provide a quick, cost-effective and fair means of compensating the victims of medical accidents. The 'no fault' prefix means that the victim does not have to prove in a court of law that his damage has resulted from someone else's negligence in order to receive compensation. All the victim has to do is to persuade the appropriate board or tribunal that his damage has resulted from, and has occurred in, circumstances which qualify within the conditions laid down by the 'no fault' scheme. The conditions attached to schemes introduced in other countries vary considerably. For the purpose of this paper the case is put forward for a scheme which compensates the victims of 'avoidable' medical accidents, because it is claims arising out of those accidents which are most likely to result in injustice to both plaintiffs and defendants under our law of tort. There is, of course, a case to be made out for compensating the victims of unavoidable medical accidents, if not for introducing general disability payments for accidents to make up for the inadequacies of our social security benefits. However the cost implications would be enormous and for the time being the prospect must be regarded as politically impracticable. The 'no fault' prefix does not mean that it will no longer be necessary to investigate the reasons for a medical accident or to attribute blame for any blameworthy conduct which may have contributed to the damage caused by the accident. Indeed it is an essential concomitant of any 'no fault' scheme for compensating victims of medical accidents that effective procedures should be in place to investigate the circumstances of such accidents, including
provisions for penalising health professionals who can be shown to have acted carelessly or incompetently in causing the accident. Under existing arrangements in this country there is very little that can be done to penalise careless and incompetent doctors unless the negligence is so gross as to attract the attention of the General Medical Council, or it is associated with a breach of terms and conditions of service in the NHS. Most of the worst cases are not worth defending and are settled out of court with the result that no-one ever gets to hear about them. The only cases which attract public attention are those which go to appeal as being borderline or which involve some academic point oflaw. The objective of a 'no fault' scheme is not, as some people seem to think, to enable careless and incompetent doctors to evade the consequences of their negligence. Indeed one of the consequences of the introduction of a 'no fault' scheme will be to improve the chances of detecting careless and incompetent medical treatment. A study carried out in California (Zaremshi and Weibel, 1985) showed that about 4 1;2 % of the 140,000 patients admitted to hospital during the year of the study would have qualified for compensation under a 'no fault' scheme. It was estimated that 23,000 of these would also have succeeded in a negligence claim. In fact only 4,000 of them had actually brought an action in negligence. This was probably one of the reasons why the United States Congressional Requesters report (1987) treated 'no fault' schemes with considerable reservation, pointing out that there was no firm data to suggest that they would reduce overall costs (United States General Accounting Office, 1987).
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The Californian study was carried out in a country where the financial constraints on bringing a legal action are far less severe than in this country. The contingency system in the United States, whatever its shortcomings, does enable any patient with a reasonable case to bring an action without having to worry about the legal costs. In this country medical negligence actions, which are amongst the most expensive oflaw suits, are available in practice only to the relatively rich, or to those poor enough to qualify for legal aid. The recent BMA study (1991) of the costs involved in introducing 'no fault' compensation emphasized that estimates based on data relating to current negligence claims could not take account of the fact that "there would clearly be some whose injuries were highly significant but who had not wished to pursue compensation because they were unwilling to accept the financial risks involved". DISADVANTAGES OF THE PRESENT ARRANGEMENTS FOR OBTAINING COMPENSATION
Apart from special statutory provisions such as the vaccine damage scheme,and disability payments under the social securi ty system, the only relief available to a patient who has suffered damage from a medical accident is to bring an action in tort, which will succeed only if he can prove under our adversarial system of justice that his damage has resulted from an act or omission which can be shown to have been negligent. Whether that act or omission was negligent will depend upon whether the duty of care owed to the patient is held to have been satisfied. Both these requirements have to be proved on a balance of probabilities. The Burden of Proof
The question whether the damage did in fact result from the act or omission concerned is common to all personal injury actions. It is deciding whether the duty of care to the patient was satisfied which is the most difficult problem in medical negligence actions. The main defence to such an action is that the defendant doctor acted within the limits of normal practice. If it is claimed that he did not, three facts
will have to be established for the action to succeed. First is that there is a usual and normal practice; second that the normal practice has not been followed; and finally and crucially that the course adopted was one which no professional man of ordinary skill would have taken ifhe had been acting with ordinary care. The action will also be successful if it can be shown that the doctor took insufficient care in recognizing that the case was beyond his own skill and and that he failed to refer the case to another doctor competent to deal with it. The Role of Expert Evidence In determining all these questions the courts have to rely heavily on opinion (otherwise known as expert) evidence. On the face of it both the issue of causation and that of the duty of care should present little difficulty. Indeed as far as causation is concerned claims to disability payments under social security and various other forms of compensation have long been settled by medical boards reasonably quickly and without undue expense. As far as any breach of the duty of care is concerned the civil law countries on the continent of Europe seem to manage quite well with agreed medical evidence being given in writing (the dossier) to the court which is presented with all the relevant evidence, and without the long drawn out examination, cross-examination and reexamination of expert witnesses by counsel which forms such an unsatisfactory feature of the adversarial system in medical negligence cases. Only those experts recognized as experts by the court are allowed to give evidence under the civil law system and questions can be put to them only through the judge. But the position is very different in England where the procedure is adversarial and confrontational. Little more than lip service is paid to the concept of independent medical expert evidence - indeed one of the most important advantages to be obtained under the procedure at English law is to discredit the expert for the opposing side. The procedure in the English courts is governed by laws of evidence which were introduced to deal with evidence as to fact and not with opinion (expert) evidence. Important evidence can be withheld, of which the
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privilege accorded to matters disclosed 'in aid of litigation' is a notorious example (Havard, 1987). The party which succeeds is the one which manages to score the most points under the rules of the contest. It is hardly surprising that European lawyers should refer in uncomplimentary terms to the 'English Sporting Theory of Justice'. A few examples should suffice to illustrate the problems which can arise. In the Jordan case the blatantly biased medical expert evidence came under severe attack in both the Court of Appeal and the House of Lords, Lord Denning observing that the evidence given on behalf of the plaintiff 'suffers to my mind from the way in which it was prepared. It was the result of long conferences between the two professors and counsel in London, and it was actually settled by counsel: in short it wears the colour of special pleading rather than an impartial report' (Whitehouse v. Jordan [1981] 1 All ER 267(HL». In another case the Judge said: 'I regret that I found certain parts of the evidence of both experts, highly qualified and experienced as they undoubtedly are, difficult to accept, either as a result of internal inconsistency within their evidence, or because of what seemed to be an intrinsic lack of logic in some particular expressed view. I recognize that the explanation for this may lie in the deficiencies of my own medical understanding, but the forensic process requires only that I do my best, In the result I find myself unattracted to, and finally unable to accept, either of the competing extreme views (Hotson v. East Berkshire AHA [1985] 3 All ER 167 at p. 183). One of the most worrying aspects of the way our courts deal with expert medical evidence is the situation which has developed over cerebral palsy cases, which was the subject of a recent lecture by Sir Donald Acheson (Acheson, 1990). Although there has been a steady decline in stillbirth and perinatal mortality rates over the last 20 years as a result of improved obstetrical care, there has been no corresponding reduction in the incidence of cerebral palsy. In other words the improvements in care do not appear to have reduced its incidence. However, over the same period, there has been a threefold increase in both the number of claims lodged in
negligence and in the damages awarded for this condition. The average settlement figure has now risen to £700,000 and awards in excess of £1 million are being recorded. The increase in the number of claims can be expected to accelerate this year as a result of recent changes in the Legal Aid provisions which enable the child's income to be assessed independently of its parents' income in determining eligibility for legal aid. Yet, as Sir Donald points out, asphyxia during delivery is only rarely associated with cerebral palsy. Indeed, since neonates with cerebral palsy are far more likely to have developmental defects (which must have occurred before birth) attention should be directed more to antenatal events rather than to the delivery itself. It is likely that our courts have been seriously misled about the importance of electronic fetal heart monitoring in preventing this condition as a result of the adversarial and confrontational procedures through which they obtain expert evidence. It should be noted in passing that the American College of Obstetricians and Gynaecologists decided in 1990, after evaluation, that monitors were no longer considered sufficiently helpful to be regarded as necessary instruments in the conduct of labour. Concealment of Information
The withholding of information from the court, either completely, or for the purpose of'producing it at the last moment in order to take the other side by surprise, is also unsatisfactory. In the Lee case, the injustice which occurred as a result of the privilege in aid oflitigation having been invoked, led the Master of the Rolls to comment that 'We(the Court of Appeal) reach this conclusion with undisguised reluctance as we think there is something seriously wrong with the law if Marlon's mother cannot find out exactly what caused this brain damage' (Lee v. SW Thames AHA [1985] 2 All ER 285 at p. 389(h». Even more recently all three judges in the Court of Appeal recommended that the reports of medical experts should in future be disclosed in personal injury cases, the practice of withholding information being criticized by the Master of the Rolls as 'leading to blind man's buff'. Most of the cards, he said, should
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be put down well before the hearing. Nor, he continued, was justice normally achieved by the surprise attack, although in some cases, he added ominously, it might be (Naylor v. Preston AHA [1987] 2 All 353 at p. 359). If expert evidence is to be given to the court on medical issues, the opinion given to the court should be arrived at by means of a scientifically based dialogue taking into account all the known facts of the case, and leading to a consensus view. A confrontational and adversarial procedure is unsuited for this purpose and carries a high risk of confusion, such as occurred in the Jordan case, the report of which shows that the lower court had misunderstood the medical term 'disimpaction' of the fetal head and had managed to convince itself that the head had been 'wedged' so firmly in the pelvis that consid erable force must have been necessary to dislodge it. The evidence given by the gynaecologist that the head had been easily disengaged in order to carry out a caesarian section was not accepted by the court (British Medical Journal, 1981). The publicity given to the hearing in the lower court, and to the damages it awarded, was considerable and it was only many years later when the decision was finally overturned in the House of Lords, that trial of forceps was re-instated as a legally safe procedure. The UniqueNatureof Medical Negligence Actions. Medical negligence cases are concerned with biological material which, almost by definition, is variable and unpredictable. Not only do individuals vary, but the same individual varies at different times. A surgeon carrying out a laparotomy can never be quite certain what he will find, and may be faced with having to take an instant decision, the consequences of which can have lasting effects on the patient. He will then be judged, with the advantage of hindsight, on the basis of what standard practice he should have followed in dealing with the unexpected situation. It is paradoxical that foreseeability should be such an important legal element of the duty of care in negligence when it is often impossible in medical practice to foresee what
will be encountered by the doctor (Havard, 1989). It is in this respect that medical negligence differs significantly from other kinds of negligence. Much of our law of negligence, both as regards causation and duty of care, seems to have developed as a result of accidents occurring in distant parts of the world to solid state structures such as oil tankers. Medical negligence also differs markedly from most other kinds of professional negligence in that practitioners such as bankers, accountants, and lawyers, unlike surgeons, rarely if ever have to take split second decisions upon being confronted with an unpredictable crisis in an unforeseeable situation. The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) recognized in its report that 'the help which is given by a doctor is limited by the boundaries ofmedical science, and within those boundaries by the doctor's own knowledge and experience'. The report went on to quote from Savatier that 'Disease, infirmity and death are ... part of the human condition, in the end they will always have the last word against the doctor'. As the United States Congressional Reporters' report (1987) put it: 'Further education should emphasize that in many circumstances medicine is still a young and uncertain science with varying outcomes." Delays Inherent in the Tort System The notorious delays inherent in our tort system, can cause serious problems. In a recent case the House of Lords remitted a case back to the court of first instance to determine the issue of causation in a claim arising out of a birth injury (Wilsher v. Essex AHA [1988]1 All ER 871). Yet, by the time the case had reached the House of Lords the child was already 10 years old. Medical techniques and procedures can change, even in a decade, and it seems likely that it will soon become necessary in medical negligence cases to recruit experts in medical history to establish what was the standard medical procedure at the time the accident occurred. This is particularly likely to occur in claims for cerebral palsy. Sir Donald Acheson, in his recent review of713 cases filed for negligence during the period 1983-89,
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showed that 105 of them were not commenced until 10 years or more after birth, and that in 13 of them more than 20 years had elapsed since the birth (Acheson, 1990). It is not so very long ago that it was standard obstetrical practice for X-ray pelvimetry to be carried out in primigravida with a high head; for twin pregnancies to be X- rayed; and for intravenous pyelograms to be carried out during pregnancy. If such practices were to be carried out during pregnancy, today a medical negligence action arising out of any consequential damage to the fetus would not even be worth defending. The consequences of delays in litigation to the victims of accidents are not always self-evident. Recent correspondence in the British Medical Journal described a survey carried out on two groups of patients who had suffered head injuries. On the basis of the usual criteria there was no initial difference between the two groups. But one year after their claims had been settled, which was, on average, 3 years after the accident, the group engaging in litigation was found to have a symptom rate 2 to 3 times that of the other group. The author commented that it is ironic that a law introduced to compensate patients should have the effect of increasing their suffering (Rutherford and Fee, 1988). Modifications to the Law of Negligence
Whilst it is true that steps are being, or have been taken to alleviate some of the unsatisfactory aspects of medical negligence actions (e.g. amendments to the Rules of the Supreme Court to facilitate exchange of expert medical reports; split trials - the ability to try liability at an initial hearing and to deal with damages later without having to wait for an application by one of the parties; claims below £25,000 to be tried in the county court etc.) the basic problem remains. The adversarial system of law, as practised in this country is wholly unsuited to deal with claims in medical negligence, both as regards causation and breaches of the duty of care.. So what are the prospects of the law of tort being amended to the extent necessary to make it a fair, equitable and cost-effective means of compensating the victims of medical accidents?
There are very few indications that the legal establishment is prepared to recognize that the situation requires radical measures. Recently, Lord Griffiths proposed that an arbitration panel of two doctors and a lawyer, working entirely on paper, and with full access to case notes and hospital records, should be set up to determine whether there has been negligence, by applying the normal principles of common law. There would be no appeal against the panel's decision (Griffiths, 1990). When the Secretary of State for Health rather unwisely referred to this proposal during the Commons debate on the Rosie Barnes bill he was immediately interrupted by a member who asked how he could possibly conceive of such a decision being made by a panel on which lawyers were not in the majority. The Secretary of State hastily pointed out that he did not want the House to debate Lord Griffith's proposal and that the government might consult on it 'if it is thought to be acceptable by those who are interested' (Parliamentary debate, 1991) Another eminent lawyer, Sir Cecil Clothier, has proposed that a 'Clinical Judgement Review Board' be set up consisting of four or five doctors and chaired by an experienced lawyer, to which application would have to be made for a review of the events leading up to the alleged medical mishap. Plaintiffs would not be allowed to bring an action through the courts unless the Board had issued a certificate. Subsequently the Department of Health (1991) has nullified a paper on Arbitration for medical negligence in the NHS, but it does not interfere with the right of the citizen to bring an action in tort. But the consensus view of the legal establishment is best illustrated by the reports of government appointed bodies such as the Civil Justice Review and the Law Reform Committee, on which lawyers are always heavily if not exclusively represented. 'So long as civillitigation in England is based up the adversary system', affirmed the Law Reform Committee (1967), 'it is we think essential to the proper preparation of each party's case that he should be entitled to insist upon there being withheld from the court any material which came into existence,and any oral communication which was made, wholly or mainly for the purpose of
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preparing his case in litigation then pending or contemplated by him'. The Report of the Review Body on Civil Justice (1988) which disclosed the most appalling delays in personal injury cases at English law, for which our adversarial system must take its full share of the blame, affirmed that 'The Hallmarks of English civil procedure are that it is adversarial and oral, and these will continue to be its leading features'. Yet its report admits that the adversarial conduct of pre-trial procedures is characterized by delay on both sides; that insistence upon oral evidence leads to unnecessarily prolonged hearings; and that the consequential cost of a legal action is often so disproportionate to the amount involved in the claim that the legal costs of both parties in a case which goes to trial may often equal or exceed the damages recovered. DAMAGES
Under the tort system the successful plaintiff is entitled to recover what is described as reasonable compensation. Unfortunately predictions as to what may happen in the future to the victim of a medical accident are notoriously unreliable. Except in those cases where agreement can be reached between the parties to the action on a structured settlement, which is rarely the case, the court will award lump sums based on a calculation of what it costs to provide the income necessary to support the victim for the estimated period of disability. It follows that in the case of brain damage to a neonate, infant or young person the damages will be considerable. If the victim's disability proves to be worse than expected, there will be no opportunity to recover additional compensation, unless the court has given a provisional award with permission to reapply later, and this also is rarely the case. On the other hand, if the patient dies shortly after the claim has been settled, the whole of the lump sum will form part of the patient's estate and will not be used for the purpose for which it was awarded by the court. A similar result will occur if the patient recovers loss of function to an unexpected degree, and no longer needs the income generated by the lump sum. Clearly arrangements which can achieve
results such as these are highly unsatisfactory. One of the main advantages of a 'no fault' scheme is that payments can be made periodically and adjusted either upwards or downwards to meet the real needs of the victim. Our tort system also fails to take into account the availability to the victim of free remedial treatment under the National Health Service. Lump sums are calculated on the basis that the necessary support is provided through the private sector, with the result that the defendant health authority has to pay twice over if, as usually happens, the victim avails himself of health service treatment for the resulting disability. The position over the availability of social security benefits is just as unsatisfactory. In 1986 the Auditor general reported that there was a complete lack of consistency in court practice. Damages were reduced by the value of some social security benefits in full, by half of their value in others, whilst yet others were ignored altogether (National Audit Office, 1986). Referring to the government's policy 'that those who are responsible for accidents should not expect the State to pay for their wrongdoing, whether in the form of treatment under the NHS or in cash benefits under the social security system, and that accident victims should not benefit twice, both from tort damages and social security payments' the report complained that the Department of Health and Social Security had failed to conduct a thorough investigation into the feasibility of a cost-effective method of recovering social security benefits from tort damages. The cost effectiveness of dealing with the problem in that way in the case of medical accidents should have been in doubt from the start as the main source of damages in medical negligence cases is the department's own health authorities. The introduction of complex legislation and administrative machinery in order to transfer sums of money from one part of a government department to another is in the worst traditions of bureaucracy. Yet the government, urged on by the Public Accounts Committee, went ahead and did it with the result that it came into effect on 3 September 1990. The complexities of the legislation have justified the
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worst fears and the overall effect will be to increase both the damages awarded and the legal costs of tort actions. The relevant legislation can be found in s.22 and the fourth schedule of the Social Security Act of 1989 as supplemented by the first schedule of the Social Security Act of 1990. Reference must also be made to the Social Security (Recoupment) Regulations 1990 and the Social Security (Recoupment) Amendment Regulations(1990) as well as the Rules of the Supreme Court (Amendment No.2) 1990 and corresponding rules for the County Court. The whole exercise raises a question mark over the government's commitment to reduce the costs of actions in tort, and it only remains to add that a 'no fault scheme would render the all this unnecessary as far as medical accidents are concerned. THE NECESSARY CONOmONS FOR A PRACTICABLE NO FAULT SCHEME Qualifying Claims and Causation.
The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) thought that the main difficulty in the way of introducing a 'no fault' scheme would be how to establish causation, as the cause of many injuries may be unidentifiable. It pointed out that even its own definition of medical injury would require difficult distinctions to be made between a medical accident, the natural progression of disease or injury, and the foreseeable adverse effects of treatment. However, it has long been the practice for issues of causation to be determined without undue difficulty by medical boards in respect of claims for compensation arising out of accidents for disability payments under Social Security, Industrial Injuries and similar schemes. It is difficult to see why disabilities claimed to have resulted from avoidable medical accidents should be presumed to create such insoluble problems of causation, provided, of course, the circumstances and conditions under which compensation is payable are not made too complicated, which seems to have been the problem with some of the foreign 'no fault' schemes, where the attempts to cater for every possible contingency
have been allowed to outweigh practical considerations of administration. There are a number of different definitions of the circumstances in which claims can be m.et under the various 'no fault' schemes. Some of them, including the Swedish and Finnish schemes and those set out in the Rosie Barnes Bill, are so specific as to give rise to difficulties of interpretation in individual cases. The most practicable test is that of avoidability. Hence the Canadian report on Liability and Compensation in Health Care (1990) recommends that the principal enquiry should be 'whether, with the benefit of hindsight, the injury could have been prevented by an alternative diagnostic or therapeutic procedure or by performing the procedure differently'. Whilst it is not denied that Boards could experience difficulties with this test, they pale into insignificance when compared with the cost, unreliability, uncertainty and delays of the tort system. Levels of Compensation
As it would be politically unacceptable for levels of compensation under a 'no fault' scheme to match the escalating amounts being awarded in actions for tort, consideration has to be given to limiting or 'capping' the amounts which can be awarded under a 'no fault' scheme, as recommended in the recent report of the Royal College of Physicians (1990) e.g. compensation for prospective loss of earnings should not exceed average net earnings, and the amounts which can be awarded for noneconomic damage e.g. pain and suffering (which are increasing alarmingly in actions for tort) should also be capped. Those wishing to avoid any shortfall in the expectations they might have by bringing an action in negligence could have recourse to the insurance market, and should be encouraged to do so by making the premiums tax deductible. For similar reasons the amounts awarded in damages should be paid as a lump sum only in the most exceptional circumstances, leaving the victim who is in receipt of periodical payments to be reviewed at appropriate intervals by the accident compensation board or such other body as may be set up to administer the 'no fault' scheme.
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Restrictions on Bringing an Action in Tort
Collateral Benefits
A victim of a medical accident should not be allowed to sue in tort for the same cause for action if he has already claimed under the 'no fault' compensation scheme. Conversely the victim who has pursued a tort action to an unsuccessful conclusion should not be allowed to claim under the 'no fault' scheme. Accordingly it will be necessary to fix a point in time at which the election to sue in tort must be made. The Canadian Report on Liability and Compensation in Health Care (1990) recommends that this point should 'be chosen in such a way as on the one hand to create a substantial incentive for the injured patient to opt for the compensation scheme benefits, while on the other hand to provide the injured patient with a reasonable opportunity (if necessary) to pursue the litigation option through the pretrial stages to assess fully the possibility of a successful negligence action'. The report also recommended that in accepting compensation from the "no fault" scheme the victim be required to waive any tort action arising from the accident.
All social security and other benefits arising out of the accident should be taken into account in determining the level of compensation, including payments under private insurance policies(other than those taken out specifically to augment the scheme's benefits). As a recent Canadian Medical Association report (1988) put it 'The medical profession has no desire to see a negligent individual take advantage of another person's forethought, but the argument that a personally injured individual should not be penalised for his or her prudence is a false one. The prudence is not in preparing for the event of a double recovery. Prudence is in guaranteeing that the individual will not sustain a monetary loss'.
limitation Periods
Under the Limitation Acts delays in bringing claims are particularly likely to arise where the victim is under age or otherwise legally incompetent, e.g. mentally defective. The Canadian report has recommended that for purposes of a 'no fault' scheme the period within which a claim must be brought should be 6 years from the discovery of the injury, subject to a 10 year maximum from the date the services were rendered, but with a continuing exception in cases of deception, fraud, or non- disclosure. Relief could be afforded to children and legally incapacitated adults beyond these periods in certain circumstances. These limitation periods do not differ markedly from those which apply under most common law jurisdictions to actions in tort, but the advantage of a 'no fault' scheme is that the further considerable delays which occur once litigation has started would be avoided.
Changes to the Law of Tort
Unless action is taken to modify some of the defects in the law of tort, the lottery which an action in tort represents will continue to provide too great an attraction to those wishing to obtain large lump sums in damages, and this may discourage recourse to the 'no fault' scheme. The adversarial and confrontational aspects of the procedure in tort actions do little to ensure that the court is provided with the best available independent expert evidence, and there is a case for adopting the system introduced in Europe as long ago as the 13th. century whereby expert evidence can be given only by those recognized by the court as competent to give it. Whilst there is little hope of ensuring that there will always be the fullest disclosure of all the necessary information in an action for tort, it would be helpful if the courts would make more use of the recent amendment to the Rules of the Supreme Court (Order 38 R.38(1» which enable a direction to be made that the experts' reports be exchanged between the two sides, and that the experts concerned should meet together to try and resolve any differences between them. Given that medical negligence actions are notoriously complex and should be managed only by lawyers with considerable experience in the field, the Law Society should be asked to review the current practice of 'High Street' solicitors who advertise their services through
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the media to victims of medical accidents, irrespective of their experience in medical negligence cases. One can only observe that if a doctor advertised services which he was not fully competent to provide he would not only risk having to answer a charge of unprofessional conduct before the General Medical Council, but he would also risk an action in negligence, which would almost certainly succeed if the patient suffered damage as a result of having answered the advertisement-. Improving the Accountability of the Medical Profession
As it would not be practicable to to introduce a 'no fault' scheme until changes are made in the procedures for ensuring adequate medical accountability, peer review and risk management schemes will need to be radically overhauled, and there will have to be the closest liaison between the Accident Compensation Board or other such body as is charged with administering the scheme and those responsible for maintaining and improving clinical standards. This will involve changes in disciplinary arrangements which the medical profession in this country will find it difficult to accept. However they have already been accepted by the profession in North America as an essential concomitant to the introduction of 'no faul t' schemes. Under the American Medical Association's Medical Liability Project, which was drawn up as a result of collaboration between the Association and 31 specialist societies, hospitals are required to conduct periodical performance reviews of their medical staff and to insist upon all cases of suspected incompetence, impairment, or dependence upon alcohol and other drugs being reported to an investigative board, with immunity from legal process in all cases where the reporting is in good faith (American Medical Association, 1988). Meanwhile the General Medical Council (1992) has just issued a Consultation Paper which admits that its existing powers cover only situations where a doctor's fitness to practice is seriously impaired by ill health or when allegations of serious professional misconduct are made. It is now recommended that serious cases of 'poor performance' should be investigated as well,
under a separate procedure designed primarily to protect the public. The proposal, if accepted, will require primary legislation. Most 'no fault' schemes require clinical data about medical accidents to be recorded by the board or other body dealing with claims, thereby enabling an important fund of information to be available whereby measures can be introduced to prevent recurrences. The tort system, on the other hand, tends to discourage disclosure of such information, particularly where cases are settled out of court. It is significant that the Department of Health was not even informed, until three years ago, of successful actions in negligence brought against health authorities unless the damages awarded or settled out of court exceeded £100,000 (Centre for Socio-legal Studies (1988). THE ANALOGY WITH PRODUCT LIABILITY
Originally manufacturers had a defence to an action for damages resulting from their defective products if they could show that they had taken reasonable steps to reduce the risk of defects occurring. However public policy demanded that there should be strict liability for damage from defective products, with the result that ifit proves too expensive to eliminate all the risks of the the product concerned it is withdrawn from the market (Rudolph, 1988). Providers of health care are beginning to react in the same way to the increasing threat of litigation, e.g. obstetricians have become an endangered species in large parts of the United States. There are now more than 70 counties in the State of Georgia which have no obstetrican because litigation has made it too expensive to practice obstetrics. Just as 'good samaritan' legislation has had to be passed in several states in order to encourage doctors fearful of a resulting legal action to stop at road accidents and render medical aid, so it has become necessary to pass legislation to protect obstetricians in Florida, and Virginia
'No Fault' Compensation For Medical Accidents JOHN HAVARD, CBE MA MD LLM MRCP, Barrister-at-Law Commonwealth Medical Association, BMA House, Tavistock Square, London We1 H 9JP
The objective of 'no fault' compensation in the context of health care, is to provide a quick, cost-effective and fair means of compensating the victims of medical accidents. The 'no fault' prefix means that the victim does not have to prove in a court of law that his damage has resulted from someone else's negligence in order to receive compensation. All the victim has to do is to persuade the appropriate board or tribunal that his damage has resulted from, and has occurred in, circumstances which qualify within the conditions laid down by the 'no fault' scheme. The conditions attached to schemes introduced in other countries vary considerably. For the purpose of this paper the case is put forward for a scheme which compensates the victims of 'avoidable' medical accidents, because it is claims arising out of those accidents which are most likely to result in injustice to both plaintiffs and defendants under our law of tort. There is, of course, a case to be made out for compensating the victims of unavoidable medical accidents, if not for introducing general disability payments for accidents to make up for the inadequacies of our social security benefits. However the cost implications would be enormous and for the time being the prospect must be regarded as politically impracticable. The 'no fault' prefix does not mean that it will no longer be necessary to investigate the reasons for a medical accident or to attribute blame for any blameworthy conduct which may have contributed to the damage caused by the accident. Indeed it is an essential concomitant of any 'no fault' scheme for compensating victims of medical accidents that effective procedures should be in place to investigate the circumstances of such accidents, including
provisions for penalising health professionals who can be shown to have acted carelessly or incompetently in causing the accident. Under existing arrangements in this country there is very little that can be done to penalise careless and incompetent doctors unless the negligence is so gross as to attract the attention of the General Medical Council, or it is associated with a breach of terms and conditions of service in the NHS. Most of the worst cases are not worth defending and are settled out of court with the result that no-one ever gets to hear about them. The only cases which attract public attention are those which go to appeal as being borderline or which involve some academic point oflaw. The objective of a 'no fault' scheme is not, as some people seem to think, to enable careless and incompetent doctors to evade the consequences of their negligence. Indeed one of the consequences of the introduction of a 'no fault' scheme will be to improve the chances of detecting careless and incompetent medical treatment. A study carried out in California (Zaremshi and Weibel, 1985) showed that about 4 1;2 % of the 140,000 patients admitted to hospital during the year of the study would have qualified for compensation under a 'no fault' scheme. It was estimated that 23,000 of these would also have succeeded in a negligence claim. In fact only 4,000 of them had actually brought an action in negligence. This was probably one of the reasons why the United States Congressional Requesters report (1987) treated 'no fault' schemes with considerable reservation, pointing out that there was no firm data to suggest that they would reduce overall costs (United States General Accounting Office, 1987).
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The Californian study was carried out in a country where the financial constraints on bringing a legal action are far less severe than in this country. The contingency system in the United States, whatever its shortcomings, does enable any patient with a reasonable case to bring an action without having to worry about the legal costs. In this country medical negligence actions, which are amongst the most expensive oflaw suits, are available in practice only to the relatively rich, or to those poor enough to qualify for legal aid. The recent BMA study (1991) of the costs involved in introducing 'no fault' compensation emphasized that estimates based on data relating to current negligence claims could not take account of the fact that "there would clearly be some whose injuries were highly significant but who had not wished to pursue compensation because they were unwilling to accept the financial risks involved". DISADVANTAGES OF THE PRESENT ARRANGEMENTS FOR OBTAINING COMPENSATION
Apart from special statutory provisions such as the vaccine damage scheme,and disability payments under the social securi ty system, the only relief available to a patient who has suffered damage from a medical accident is to bring an action in tort, which will succeed only if he can prove under our adversarial system of justice that his damage has resulted from an act or omission which can be shown to have been negligent. Whether that act or omission was negligent will depend upon whether the duty of care owed to the patient is held to have been satisfied. Both these requirements have to be proved on a balance of probabilities. The Burden of Proof
The question whether the damage did in fact result from the act or omission concerned is common to all personal injury actions. It is deciding whether the duty of care to the patient was satisfied which is the most difficult problem in medical negligence actions. The main defence to such an action is that the defendant doctor acted within the limits of normal practice. If it is claimed that he did not, three facts
will have to be established for the action to succeed. First is that there is a usual and normal practice; second that the normal practice has not been followed; and finally and crucially that the course adopted was one which no professional man of ordinary skill would have taken ifhe had been acting with ordinary care. The action will also be successful if it can be shown that the doctor took insufficient care in recognizing that the case was beyond his own skill and and that he failed to refer the case to another doctor competent to deal with it. The Role of Expert Evidence In determining all these questions the courts have to rely heavily on opinion (otherwise known as expert) evidence. On the face of it both the issue of causation and that of the duty of care should present little difficulty. Indeed as far as causation is concerned claims to disability payments under social security and various other forms of compensation have long been settled by medical boards reasonably quickly and without undue expense. As far as any breach of the duty of care is concerned the civil law countries on the continent of Europe seem to manage quite well with agreed medical evidence being given in writing (the dossier) to the court which is presented with all the relevant evidence, and without the long drawn out examination, cross-examination and reexamination of expert witnesses by counsel which forms such an unsatisfactory feature of the adversarial system in medical negligence cases. Only those experts recognized as experts by the court are allowed to give evidence under the civil law system and questions can be put to them only through the judge. But the position is very different in England where the procedure is adversarial and confrontational. Little more than lip service is paid to the concept of independent medical expert evidence - indeed one of the most important advantages to be obtained under the procedure at English law is to discredit the expert for the opposing side. The procedure in the English courts is governed by laws of evidence which were introduced to deal with evidence as to fact and not with opinion (expert) evidence. Important evidence can be withheld, of which the
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privilege accorded to matters disclosed 'in aid of litigation' is a notorious example (Havard, 1987). The party which succeeds is the one which manages to score the most points under the rules of the contest. It is hardly surprising that European lawyers should refer in uncomplimentary terms to the 'English Sporting Theory of Justice'. A few examples should suffice to illustrate the problems which can arise. In the Jordan case the blatantly biased medical expert evidence came under severe attack in both the Court of Appeal and the House of Lords, Lord Denning observing that the evidence given on behalf of the plaintiff 'suffers to my mind from the way in which it was prepared. It was the result of long conferences between the two professors and counsel in London, and it was actually settled by counsel: in short it wears the colour of special pleading rather than an impartial report' (Whitehouse v. Jordan [1981] 1 All ER 267(HL». In another case the Judge said: 'I regret that I found certain parts of the evidence of both experts, highly qualified and experienced as they undoubtedly are, difficult to accept, either as a result of internal inconsistency within their evidence, or because of what seemed to be an intrinsic lack of logic in some particular expressed view. I recognize that the explanation for this may lie in the deficiencies of my own medical understanding, but the forensic process requires only that I do my best, In the result I find myself unattracted to, and finally unable to accept, either of the competing extreme views (Hotson v. East Berkshire AHA [1985] 3 All ER 167 at p. 183). One of the most worrying aspects of the way our courts deal with expert medical evidence is the situation which has developed over cerebral palsy cases, which was the subject of a recent lecture by Sir Donald Acheson (Acheson, 1990). Although there has been a steady decline in stillbirth and perinatal mortality rates over the last 20 years as a result of improved obstetrical care, there has been no corresponding reduction in the incidence of cerebral palsy. In other words the improvements in care do not appear to have reduced its incidence. However, over the same period, there has been a threefold increase in both the number of claims lodged in
negligence and in the damages awarded for this condition. The average settlement figure has now risen to £700,000 and awards in excess of £1 million are being recorded. The increase in the number of claims can be expected to accelerate this year as a result of recent changes in the Legal Aid provisions which enable the child's income to be assessed independently of its parents' income in determining eligibility for legal aid. Yet, as Sir Donald points out, asphyxia during delivery is only rarely associated with cerebral palsy. Indeed, since neonates with cerebral palsy are far more likely to have developmental defects (which must have occurred before birth) attention should be directed more to antenatal events rather than to the delivery itself. It is likely that our courts have been seriously misled about the importance of electronic fetal heart monitoring in preventing this condition as a result of the adversarial and confrontational procedures through which they obtain expert evidence. It should be noted in passing that the American College of Obstetricians and Gynaecologists decided in 1990, after evaluation, that monitors were no longer considered sufficiently helpful to be regarded as necessary instruments in the conduct of labour. Concealment of Information
The withholding of information from the court, either completely, or for the purpose of'producing it at the last moment in order to take the other side by surprise, is also unsatisfactory. In the Lee case, the injustice which occurred as a result of the privilege in aid oflitigation having been invoked, led the Master of the Rolls to comment that 'We(the Court of Appeal) reach this conclusion with undisguised reluctance as we think there is something seriously wrong with the law if Marlon's mother cannot find out exactly what caused this brain damage' (Lee v. SW Thames AHA [1985] 2 All ER 285 at p. 389(h». Even more recently all three judges in the Court of Appeal recommended that the reports of medical experts should in future be disclosed in personal injury cases, the practice of withholding information being criticized by the Master of the Rolls as 'leading to blind man's buff'. Most of the cards, he said, should
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be put down well before the hearing. Nor, he continued, was justice normally achieved by the surprise attack, although in some cases, he added ominously, it might be (Naylor v. Preston AHA [1987] 2 All 353 at p. 359). If expert evidence is to be given to the court on medical issues, the opinion given to the court should be arrived at by means of a scientifically based dialogue taking into account all the known facts of the case, and leading to a consensus view. A confrontational and adversarial procedure is unsuited for this purpose and carries a high risk of confusion, such as occurred in the Jordan case, the report of which shows that the lower court had misunderstood the medical term 'disimpaction' of the fetal head and had managed to convince itself that the head had been 'wedged' so firmly in the pelvis that consid erable force must have been necessary to dislodge it. The evidence given by the gynaecologist that the head had been easily disengaged in order to carry out a caesarian section was not accepted by the court (British Medical Journal, 1981). The publicity given to the hearing in the lower court, and to the damages it awarded, was considerable and it was only many years later when the decision was finally overturned in the House of Lords, that trial of forceps was re-instated as a legally safe procedure. The UniqueNatureof Medical Negligence Actions. Medical negligence cases are concerned with biological material which, almost by definition, is variable and unpredictable. Not only do individuals vary, but the same individual varies at different times. A surgeon carrying out a laparotomy can never be quite certain what he will find, and may be faced with having to take an instant decision, the consequences of which can have lasting effects on the patient. He will then be judged, with the advantage of hindsight, on the basis of what standard practice he should have followed in dealing with the unexpected situation. It is paradoxical that foreseeability should be such an important legal element of the duty of care in negligence when it is often impossible in medical practice to foresee what
will be encountered by the doctor (Havard, 1989). It is in this respect that medical negligence differs significantly from other kinds of negligence. Much of our law of negligence, both as regards causation and duty of care, seems to have developed as a result of accidents occurring in distant parts of the world to solid state structures such as oil tankers. Medical negligence also differs markedly from most other kinds of professional negligence in that practitioners such as bankers, accountants, and lawyers, unlike surgeons, rarely if ever have to take split second decisions upon being confronted with an unpredictable crisis in an unforeseeable situation. The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) recognized in its report that 'the help which is given by a doctor is limited by the boundaries ofmedical science, and within those boundaries by the doctor's own knowledge and experience'. The report went on to quote from Savatier that 'Disease, infirmity and death are ... part of the human condition, in the end they will always have the last word against the doctor'. As the United States Congressional Reporters' report (1987) put it: 'Further education should emphasize that in many circumstances medicine is still a young and uncertain science with varying outcomes." Delays Inherent in the Tort System The notorious delays inherent in our tort system, can cause serious problems. In a recent case the House of Lords remitted a case back to the court of first instance to determine the issue of causation in a claim arising out of a birth injury (Wilsher v. Essex AHA [1988]1 All ER 871). Yet, by the time the case had reached the House of Lords the child was already 10 years old. Medical techniques and procedures can change, even in a decade, and it seems likely that it will soon become necessary in medical negligence cases to recruit experts in medical history to establish what was the standard medical procedure at the time the accident occurred. This is particularly likely to occur in claims for cerebral palsy. Sir Donald Acheson, in his recent review of713 cases filed for negligence during the period 1983-89,
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showed that 105 of them were not commenced until 10 years or more after birth, and that in 13 of them more than 20 years had elapsed since the birth (Acheson, 1990). It is not so very long ago that it was standard obstetrical practice for X-ray pelvimetry to be carried out in primigravida with a high head; for twin pregnancies to be X- rayed; and for intravenous pyelograms to be carried out during pregnancy. If such practices were to be carried out during pregnancy, today a medical negligence action arising out of any consequential damage to the fetus would not even be worth defending. The consequences of delays in litigation to the victims of accidents are not always self-evident. Recent correspondence in the British Medical Journal described a survey carried out on two groups of patients who had suffered head injuries. On the basis of the usual criteria there was no initial difference between the two groups. But one year after their claims had been settled, which was, on average, 3 years after the accident, the group engaging in litigation was found to have a symptom rate 2 to 3 times that of the other group. The author commented that it is ironic that a law introduced to compensate patients should have the effect of increasing their suffering (Rutherford and Fee, 1988). Modifications to the Law of Negligence
Whilst it is true that steps are being, or have been taken to alleviate some of the unsatisfactory aspects of medical negligence actions (e.g. amendments to the Rules of the Supreme Court to facilitate exchange of expert medical reports; split trials - the ability to try liability at an initial hearing and to deal with damages later without having to wait for an application by one of the parties; claims below £25,000 to be tried in the county court etc.) the basic problem remains. The adversarial system of law, as practised in this country is wholly unsuited to deal with claims in medical negligence, both as regards causation and breaches of the duty of care.. So what are the prospects of the law of tort being amended to the extent necessary to make it a fair, equitable and cost-effective means of compensating the victims of medical accidents?
There are very few indications that the legal establishment is prepared to recognize that the situation requires radical measures. Recently, Lord Griffiths proposed that an arbitration panel of two doctors and a lawyer, working entirely on paper, and with full access to case notes and hospital records, should be set up to determine whether there has been negligence, by applying the normal principles of common law. There would be no appeal against the panel's decision (Griffiths, 1990). When the Secretary of State for Health rather unwisely referred to this proposal during the Commons debate on the Rosie Barnes bill he was immediately interrupted by a member who asked how he could possibly conceive of such a decision being made by a panel on which lawyers were not in the majority. The Secretary of State hastily pointed out that he did not want the House to debate Lord Griffith's proposal and that the government might consult on it 'if it is thought to be acceptable by those who are interested' (Parliamentary debate, 1991) Another eminent lawyer, Sir Cecil Clothier, has proposed that a 'Clinical Judgement Review Board' be set up consisting of four or five doctors and chaired by an experienced lawyer, to which application would have to be made for a review of the events leading up to the alleged medical mishap. Plaintiffs would not be allowed to bring an action through the courts unless the Board had issued a certificate. Subsequently the Department of Health (1991) has nullified a paper on Arbitration for medical negligence in the NHS, but it does not interfere with the right of the citizen to bring an action in tort. But the consensus view of the legal establishment is best illustrated by the reports of government appointed bodies such as the Civil Justice Review and the Law Reform Committee, on which lawyers are always heavily if not exclusively represented. 'So long as civillitigation in England is based up the adversary system', affirmed the Law Reform Committee (1967), 'it is we think essential to the proper preparation of each party's case that he should be entitled to insist upon there being withheld from the court any material which came into existence,and any oral communication which was made, wholly or mainly for the purpose of
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preparing his case in litigation then pending or contemplated by him'. The Report of the Review Body on Civil Justice (1988) which disclosed the most appalling delays in personal injury cases at English law, for which our adversarial system must take its full share of the blame, affirmed that 'The Hallmarks of English civil procedure are that it is adversarial and oral, and these will continue to be its leading features'. Yet its report admits that the adversarial conduct of pre-trial procedures is characterized by delay on both sides; that insistence upon oral evidence leads to unnecessarily prolonged hearings; and that the consequential cost of a legal action is often so disproportionate to the amount involved in the claim that the legal costs of both parties in a case which goes to trial may often equal or exceed the damages recovered. DAMAGES
Under the tort system the successful plaintiff is entitled to recover what is described as reasonable compensation. Unfortunately predictions as to what may happen in the future to the victim of a medical accident are notoriously unreliable. Except in those cases where agreement can be reached between the parties to the action on a structured settlement, which is rarely the case, the court will award lump sums based on a calculation of what it costs to provide the income necessary to support the victim for the estimated period of disability. It follows that in the case of brain damage to a neonate, infant or young person the damages will be considerable. If the victim's disability proves to be worse than expected, there will be no opportunity to recover additional compensation, unless the court has given a provisional award with permission to reapply later, and this also is rarely the case. On the other hand, if the patient dies shortly after the claim has been settled, the whole of the lump sum will form part of the patient's estate and will not be used for the purpose for which it was awarded by the court. A similar result will occur if the patient recovers loss of function to an unexpected degree, and no longer needs the income generated by the lump sum. Clearly arrangements which can achieve
results such as these are highly unsatisfactory. One of the main advantages of a 'no fault' scheme is that payments can be made periodically and adjusted either upwards or downwards to meet the real needs of the victim. Our tort system also fails to take into account the availability to the victim of free remedial treatment under the National Health Service. Lump sums are calculated on the basis that the necessary support is provided through the private sector, with the result that the defendant health authority has to pay twice over if, as usually happens, the victim avails himself of health service treatment for the resulting disability. The position over the availability of social security benefits is just as unsatisfactory. In 1986 the Auditor general reported that there was a complete lack of consistency in court practice. Damages were reduced by the value of some social security benefits in full, by half of their value in others, whilst yet others were ignored altogether (National Audit Office, 1986). Referring to the government's policy 'that those who are responsible for accidents should not expect the State to pay for their wrongdoing, whether in the form of treatment under the NHS or in cash benefits under the social security system, and that accident victims should not benefit twice, both from tort damages and social security payments' the report complained that the Department of Health and Social Security had failed to conduct a thorough investigation into the feasibility of a cost-effective method of recovering social security benefits from tort damages. The cost effectiveness of dealing with the problem in that way in the case of medical accidents should have been in doubt from the start as the main source of damages in medical negligence cases is the department's own health authorities. The introduction of complex legislation and administrative machinery in order to transfer sums of money from one part of a government department to another is in the worst traditions of bureaucracy. Yet the government, urged on by the Public Accounts Committee, went ahead and did it with the result that it came into effect on 3 September 1990. The complexities of the legislation have justified the
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worst fears and the overall effect will be to increase both the damages awarded and the legal costs of tort actions. The relevant legislation can be found in s.22 and the fourth schedule of the Social Security Act of 1989 as supplemented by the first schedule of the Social Security Act of 1990. Reference must also be made to the Social Security (Recoupment) Regulations 1990 and the Social Security (Recoupment) Amendment Regulations(1990) as well as the Rules of the Supreme Court (Amendment No.2) 1990 and corresponding rules for the County Court. The whole exercise raises a question mark over the government's commitment to reduce the costs of actions in tort, and it only remains to add that a 'no fault scheme would render the all this unnecessary as far as medical accidents are concerned. THE NECESSARY CONOmONS FOR A PRACTICABLE NO FAULT SCHEME Qualifying Claims and Causation.
The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) thought that the main difficulty in the way of introducing a 'no fault' scheme would be how to establish causation, as the cause of many injuries may be unidentifiable. It pointed out that even its own definition of medical injury would require difficult distinctions to be made between a medical accident, the natural progression of disease or injury, and the foreseeable adverse effects of treatment. However, it has long been the practice for issues of causation to be determined without undue difficulty by medical boards in respect of claims for compensation arising out of accidents for disability payments under Social Security, Industrial Injuries and similar schemes. It is difficult to see why disabilities claimed to have resulted from avoidable medical accidents should be presumed to create such insoluble problems of causation, provided, of course, the circumstances and conditions under which compensation is payable are not made too complicated, which seems to have been the problem with some of the foreign 'no fault' schemes, where the attempts to cater for every possible contingency
have been allowed to outweigh practical considerations of administration. There are a number of different definitions of the circumstances in which claims can be m.et under the various 'no fault' schemes. Some of them, including the Swedish and Finnish schemes and those set out in the Rosie Barnes Bill, are so specific as to give rise to difficulties of interpretation in individual cases. The most practicable test is that of avoidability. Hence the Canadian report on Liability and Compensation in Health Care (1990) recommends that the principal enquiry should be 'whether, with the benefit of hindsight, the injury could have been prevented by an alternative diagnostic or therapeutic procedure or by performing the procedure differently'. Whilst it is not denied that Boards could experience difficulties with this test, they pale into insignificance when compared with the cost, unreliability, uncertainty and delays of the tort system. Levels of Compensation
As it would be politically unacceptable for levels of compensation under a 'no fault' scheme to match the escalating amounts being awarded in actions for tort, consideration has to be given to limiting or 'capping' the amounts which can be awarded under a 'no fault' scheme, as recommended in the recent report of the Royal College of Physicians (1990) e.g. compensation for prospective loss of earnings should not exceed average net earnings, and the amounts which can be awarded for noneconomic damage e.g. pain and suffering (which are increasing alarmingly in actions for tort) should also be capped. Those wishing to avoid any shortfall in the expectations they might have by bringing an action in negligence could have recourse to the insurance market, and should be encouraged to do so by making the premiums tax deductible. For similar reasons the amounts awarded in damages should be paid as a lump sum only in the most exceptional circumstances, leaving the victim who is in receipt of periodical payments to be reviewed at appropriate intervals by the accident compensation board or such other body as may be set up to administer the 'no fault' scheme.
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Restrictions on Bringing an Action in Tort
Collateral Benefits
A victim of a medical accident should not be allowed to sue in tort for the same cause for action if he has already claimed under the 'no fault' compensation scheme. Conversely the victim who has pursued a tort action to an unsuccessful conclusion should not be allowed to claim under the 'no fault' scheme. Accordingly it will be necessary to fix a point in time at which the election to sue in tort must be made. The Canadian Report on Liability and Compensation in Health Care (1990) recommends that this point should 'be chosen in such a way as on the one hand to create a substantial incentive for the injured patient to opt for the compensation scheme benefits, while on the other hand to provide the injured patient with a reasonable opportunity (if necessary) to pursue the litigation option through the pretrial stages to assess fully the possibility of a successful negligence action'. The report also recommended that in accepting compensation from the "no fault" scheme the victim be required to waive any tort action arising from the accident.
All social security and other benefits arising out of the accident should be taken into account in determining the level of compensation, including payments under private insurance policies(other than those taken out specifically to augment the scheme's benefits). As a recent Canadian Medical Association report (1988) put it 'The medical profession has no desire to see a negligent individual take advantage of another person's forethought, but the argument that a personally injured individual should not be penalised for his or her prudence is a false one. The prudence is not in preparing for the event of a double recovery. Prudence is in guaranteeing that the individual will not sustain a monetary loss'.
limitation Periods
Under the Limitation Acts delays in bringing claims are particularly likely to arise where the victim is under age or otherwise legally incompetent, e.g. mentally defective. The Canadian report has recommended that for purposes of a 'no fault' scheme the period within which a claim must be brought should be 6 years from the discovery of the injury, subject to a 10 year maximum from the date the services were rendered, but with a continuing exception in cases of deception, fraud, or non- disclosure. Relief could be afforded to children and legally incapacitated adults beyond these periods in certain circumstances. These limitation periods do not differ markedly from those which apply under most common law jurisdictions to actions in tort, but the advantage of a 'no fault' scheme is that the further considerable delays which occur once litigation has started would be avoided.
Changes to the Law of Tort
Unless action is taken to modify some of the defects in the law of tort, the lottery which an action in tort represents will continue to provide too great an attraction to those wishing to obtain large lump sums in damages, and this may discourage recourse to the 'no fault' scheme. The adversarial and confrontational aspects of the procedure in tort actions do little to ensure that the court is provided with the best available independent expert evidence, and there is a case for adopting the system introduced in Europe as long ago as the 13th. century whereby expert evidence can be given only by those recognized by the court as competent to give it. Whilst there is little hope of ensuring that there will always be the fullest disclosure of all the necessary information in an action for tort, it would be helpful if the courts would make more use of the recent amendment to the Rules of the Supreme Court (Order 38 R.38(1» which enable a direction to be made that the experts' reports be exchanged between the two sides, and that the experts concerned should meet together to try and resolve any differences between them. Given that medical negligence actions are notoriously complex and should be managed only by lawyers with considerable experience in the field, the Law Society should be asked to review the current practice of 'High Street' solicitors who advertise their services through
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the media to victims of medical accidents, irrespective of their experience in medical negligence cases. One can only observe that if a doctor advertised services which he was not fully competent to provide he would not only risk having to answer a charge of unprofessional conduct before the General Medical Council, but he would also risk an action in negligence, which would almost certainly succeed if the patient suffered damage as a result of having answered the advertisement-. Improving the Accountability of the Medical Profession
As it would not be practicable to to introduce a 'no fault' scheme until changes are made in the procedures for ensuring adequate medical accountability, peer review and risk management schemes will need to be radically overhauled, and there will have to be the closest liaison between the Accident Compensation Board or other such body as is charged with administering the scheme and those responsible for maintaining and improving clinical standards. This will involve changes in disciplinary arrangements which the medical profession in this country will find it difficult to accept. However they have already been accepted by the profession in North America as an essential concomitant to the introduction of 'no faul t' schemes. Under the American Medical Association's Medical Liability Project, which was drawn up as a result of collaboration between the Association and 31 specialist societies, hospitals are required to conduct periodical performance reviews of their medical staff and to insist upon all cases of suspected incompetence, impairment, or dependence upon alcohol and other drugs being reported to an investigative board, with immunity from legal process in all cases where the reporting is in good faith (American Medical Association, 1988). Meanwhile the General Medical Council (1992) has just issued a Consultation Paper which admits that its existing powers cover only situations where a doctor's fitness to practice is seriously impaired by ill health or when allegations of serious professional misconduct are made. It is now recommended that serious cases of 'poor performance' should be investigated as well,
under a separate procedure designed primarily to protect the public. The proposal, if accepted, will require primary legislation. Most 'no fault' schemes require clinical data about medical accidents to be recorded by the board or other body dealing with claims, thereby enabling an important fund of information to be available whereby measures can be introduced to prevent recurrences. The tort system, on the other hand, tends to discourage disclosure of such information, particularly where cases are settled out of court. It is significant that the Department of Health was not even informed, until three years ago, of successful actions in negligence brought against health authorities unless the damages awarded or settled out of court exceeded £100,000 (Centre for Socio-legal Studies (1988). THE ANALOGY WITH PRODUCT LIABILITY
Originally manufacturers had a defence to an action for damages resulting from their defective products if they could show that they had taken reasonable steps to reduce the risk of defects occurring. However public policy demanded that there should be strict liability for damage from defective products, with the result that ifit proves too expensive to eliminate all the risks of the the product concerned it is withdrawn from the market (Rudolph, 1988). Providers of health care are beginning to react in the same way to the increasing threat of litigation, e.g. obstetricians have become an endangered species in large parts of the United States. There are now more than 70 counties in the State of Georgia which have no obstetrican because litigation has made it too expensive to practice obstetrics. Just as 'good samaritan' legislation has had to be passed in several states in order to encourage doctors fearful of a resulting legal action to stop at road accidents and render medical aid, so it has become necessary to pass legislation to protect obstetricians in Florida, and Virginia
