Section IV

Special Areas

Chapter 15    Medical Negligence

Reasons for looking at medical negligence
1.    Why have I singled out medical negligence for the most intensive examination during Stage 2 of my Inquiry? (I am using the term 'medical negligence' in this report to refer to any litigation involving allegations of negligence in the delivery of health care, whether by doctors, nurses or other health professionals.) It may appear a surprising choice, because medical negligence cases have no special procedures or rules of court. They are a sub-species of professional negligence actions, and they also belong to what is numerically the largest category of cases proceeding to trial, personal injury. Neither of these is singled out for special attention.

2.    The answer is that early in the Inquiry it became increasingly obvious that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants in a number of respects.

(a) The disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases.

(b) The delay in resolving claims is more often unacceptable.

(c) Unmeritorious cases are often pursued, and clear-cut claims defended, for too long.

(d) The success rate is lower than in other personal injury litigation.

(e) The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation.

3.    The cost of medical negligence litigation is now so high that smaller claims can rarely be litigated because of the disproportionate cost. It is difficult for patients to pursue a claim of any value unless they are eligible for legal aid. In the Supreme Court Taxing Office survey (see Annex 3 to this report), 92 per cent of successful parties in medical negligence cases were legally aided. An analysis by the Law Society of a survey by Action for Victims of Medical Accidents (AVMA) of 376 cases conducted by solicitors' firms on its specialist panel indicates that 90 per cent of cases which reached the stage of litigation were legally aided. If these figures are representative of medical negligence litigation generally, then in the vast majority of cases both sides are funded from the public purse. Here the cause for concern is the amount of money spent by NHS trusts and other defendants on legal costs: money which would be much better devoted to compensating victims or, better still, to improving standards of care so that future mistakes are avoided.

4.    The new system of case management by the courts which I proposed in my interim report could do much to reduce cost and delay in medical negligence, and to encourage a more co-operative approach, enabling cases to settle on appropriate terms at an earlier stage. In particular:

(a) Clearer statements of claim and fully pleaded defences should speed up the progress of cases by helping to establish a factual matrix and define the real issues at an earlier stage.

(b) Claimants' offers will encourage earlier settlements on realistic terms.

(c) Extended summary judgment may help to weed out weak claims or defences at an earlier stage.

(d) Improved training and greater specialisation should help judges to identify weak cases, narrow and determine issues and limit the scope of evidence.

(e) More use of split trials will limit unnecessary work on quantum of damages in cases where liability is in issue (although this should not inhibit early work on quantum in cases where a valuation of the claim is possible).

(f) Greater emphasis on early definition of issues between experts should encourage a more co-operative approach and reduce cost and delay.

5.    The difficulty of proving both causation and negligence, which arises more acutely in medical negligence than in other personal injury cases, accounts for much of the excessive cost. The root of the problem, however, lies less in the complexity of the law or procedure than in the climate of mutual suspicion and defensiveness which is still all too prevalent in this area of litigation. Patients feel let down when treatment goes wrong, sometimes because of unrealistic expectations as to what could be achieved. Doctors feel they are under attack from aggrieved patients and react defensively. The patients' disappointment is then heightened by what they perceive to be a refusal to acknowledge fault and an attempt to cover up.

6.    Case management alone cannot provide the answer to this. A key requirement for achieving the necessary change is designing procedures for handling these cases, both at the pre-litigation stage and by the courts, so that a more co-operative and conciliatory approach to dispute resolution is achieved.

7.    A Medical Negligence Working Group was convened for my Inquiry by Sarah Leigh. This has already laid the foundation for the more co-operative approach which is so urgently needed in this area of litigation. It has brought together a considerable number of those involved on all sides of medical negligence litigation to discuss for the first time the problems which exist. I am particularly pleased to report that the group has established a new 'umbrella' organisation which will be open to all those with an interest in medical negligence litigation. One of this organisation's principal tasks will be to discuss and advance the further reforms which are needed after the Inquiry has finished.

The broader context
8.    My Inquiry has coincided with a period of significant change in the handling of claims within the NHS. The National Health Service Litigation Authority (NHSLA) came into existence in November 1995. It now administers a voluntary scheme which, in effect, almost acts as a mutual insurer of those NHS trusts which opt for membership. This is known as the Clinical Negligence Scheme for Trusts (CNST). Its membership already comprises about 384 NHS trusts, 89.5 per cent of the trusts in England. The CNST's coverage is limited to claims involving incidents which occurred after 1 April 1995. Because of the timescale involved in resolving this class of claims it will be some time before the full effect of the scheme will become apparent. However, its creation is undoubtedly a positive move which should result in a more satisfactory approach being adopted by defendants.

9.    A separate scheme, effective from 1 April 1996 and also administered by the NHSLA, covers all claims against NHS bodies relating to incidents which occurred before 1 April 1995. This is the Existing Liabilities Scheme, under which an NHS body can apply to the NHSLA for reimbursement of any payment out under a claim, provided it has complied with the conditions imposed by the scheme.

10.    As an indication of the scale of the task faced by the NHSLA, it is estimated that there are currently about 20,000 claims outstanding against the NHS. About 2,500 of these have a value in excess of £100,000. About 5,000 claims are settled or adjudicated each year, but the number of settlements is matched by the number of new claims entering the system.

11.    I am glad to say that the recently appointed Chairman of the NHSLA, Sir Bruce Martin QC, has responded positively to the general thrust of my proposed reforms, and has made it clear that the NHSLA will support any steps taken to improve the legal process.

12.    Different arrangements apply to claims against general practitioners and doctors of consultant status working in private hospitals. These are still dealt with by the defence organisations of which the medical practitioners involved are members, and which formerly dealt with all claims against hospital doctors. (One of these organisations, the Medical Protection Society, is about to take on a role within the management of the CNST.) The defence organisations have also made it clear that they support my objectives. Junior doctors and nursing and other staff working in private hospitals are indemnified by their employers who in turn have insurance arrangements.

13.    I have no doubt that these changes, combined with reforms of court procedure, will lay the foundation for a much improved system of handling medical negligence claims which will be to the advantage of both patients and doctors.

14.    Two further significant changes were introduced in the NHS on 1 April 1996, as part of the Government's response to the Wilson report on complaints handling in the NHS. The first is a new, more open complaints procedure, covering all NHS staff, which includes an independent review stage. The new machinery has been widely welcomed in principle, but the detailed way in which it is intended to operate has attracted some criticism, in particular because cases where the patient has indicated an intention to claim compensation are excluded.

15.    The second change is an extension of the Health Service Ombudsman's statutory jurisdiction to include clinical complaints against all NHS staff, normally provided that the complainant has exhausted the internal complaints system. The particular advantages of the Ombudsman scheme are that it is free of charge to claimants and that it provides an inquisitorial approach, with a single, neutral investigation, but the Ombudsman's extended jurisdiction will not cover claims for financial compensation.

A blueprint for reform
16.    A system for resolving disputes about medical treatment must be designed to meet the needs of doctors and other health professionals as well as patients. It should not be designed to suit the interests or convenience of lawyers, except in so far as this is necessary to ensure that the work is done properly.

17.    Many people involved in medical negligence litigation have justifiably pointed out to me the importance of establishing at the outset what an injured patient wants. Proceedings often start because the claimant cannot get the information he is seeking, or an explanation or apology, from the doctor or hospital. Historically, solicitors have had no alternative but to advise legal action, which is unlikely to be appropriate in all cases unless the client's main or only objective is to obtain financial compensation.

18.    Patients' needs and wishes may not be the same in all cases, and are not always compatible with those of health professionals. An obvious point is that both sides want to win, and for some individuals this may override considerations of speed, economy, or even fairness. Some patients want financial compensation, but they may also want to prevent a repetition of the mistreatment or misdiagnosis which occurred, or to get an apology or explanation for what went wrong. Sometimes, especially in cases where the physical injury was less serious, these non-monetary factors are the most important. Whatever form of redress they are seeking, most patients probably want:

(a) impartial information and advice, including an independent medical assessment;

(b) fair compensation for losses suffered;

(c) a limited financial commitment;

(d) a speedy resolution of the dispute;

(e) a fair and independent adjudication; and

(f) (sometimes) a day in court.

19.    Doctors and other healthcare professionals agree with patients in wanting a speedy resolution of any disputes, but this is not always compatible with their understandable wish for a fair assessment of their conduct, with a right of comment and hearing. Doctors in particular also want:

(a) a discreet, private adjudication, which some would prefer to be by a medical rather than a legal tribunal;

(b) an expert of their own or their solicitor's choice; and

(c) an economical system, which does not encourage NHS trusts to settle cases over their heads, regardless of liability.

20.    There is no easy way of satisfying everyone, but I hope to provide a set of practical and sensible recommendations which will have an impact on cost and delay while ensuring that all parties are treated fairly.

A change of culture
21.    The extent of patients' mistrust of doctors and other hospital staff is illustrated by the submission I have received from Action for Victims of Medical Accidents (AVMA). They argue that the real reason for defendants' reluctance to investigate complaints where there is a possibility of legal action is a concern that such an investigation might indeed disclose negligence:

22.    If that mistrust is to be removed, the medical profession and the NHS administration must demonstrate their commitment to patients' well-being by adopting a constructive approach to claims handling. It must be clearly accepted that injured patients are entitled to redress, and that professional solidarity or individual self-esteem are not sufficient reasons for resisting or obstructing valid claims.

23.    Patients and their representatives, for their part, must recognise that some degree of risk is inherent in all medical treatment, and that even the best practitioners do sometimes make mistakes. They should not pursue unrealistic claims, and should make every effort to resolve disputes without recourse to litigation.

24.    It is fundamental to my approach to civil litigation in general that legal proceedings should be treated as a last resort, to be used only when other means of resolving a dispute are inappropriate or have failed. When someone has a potential negligence claim against a doctor or hospital, the first essential step is to find out what the patient wants to achieve. If his or her main need is for substantial financial compensation to cover future loss of earnings or the cost of continuing care, then litigation may be (but is not always) the best way to proceed. If the patient is chiefly concerned to get an explanation or apology for what went wrong, or to ensure that procedures are changed so that future accidents can be avoided, then litigation is less likely to be the best course. Recourse to the NHS complaints procedures and, if necessary, the Health Service Ombudsman, may offer a more appropriate means of redress.

25.    The existing litigation system may allow an untenable case to come to court, several years after the event, in which there has at no stage been any personal contact between the healthcare professionals involved and the injured patient or his family. That simply should not happen, and doctors, trusts and lawyers all have a part to play in preventing it. In some cases, an explanation from the doctor of what went wrong, coupled with a personal apology, would resolve the matter without any further action. Many claims managers, who act as the hospital's first point of contact with aggrieved patients, concentrate on trying to achieve this in suitable cases.

26.    One innovative suggestion which has been put to me is that there should be a new, non-pecuniary remedy available from the courts. A patient would, in effect, be able to apply to the court for a formal statement from the hospital explaining the incident of alleged negligence.

27.    This idea has some attraction, but I do not recommend it because I think it would send out the wrong signals about the role of the courts and might even encourage unnecessary litigation. It is, as I have already stated, a fundamental part of my approach to access to justice that litigation should be treated as a last resort, and it is far better for patients and hospitals to resolve their disputes through other channels wherever possible.

28.    The best way of dealing with the problem of delay before claims are started would be a policy of more open communication on the part of hospital staff. Effective communication of course needs to start before things go wrong. All patients who are about to undergo treatment should understand that the outcome of medical treatment can be uncertain, and should be told about the range of possible outcomes in their particular case. Wherever practicable, the advice should be confirmed in writing. Doctors and hospitals should encourage patients to report any unsatisfactory outcome as soon as possible, and to seek an explanation direct from the individual doctor or hospital before going to a solicitor.

29.    Every patient who has suffered an adverse outcome is entitled to an explanation, and, where appropriate, an apology. In appropriate cases, there is no reason why an offer of compensation should not be made before any legal claim is notified, provided the patient is encouraged to seek independent advice on the offer. I understand that some hospitals offer to pay for such advice, to ensure that patients are not deterred from seeking it through fear of the cost.

30.    I can understand why this approach is unwelcome to many doctors, in particular. There is a natural reluctance to admit that one has been at fault, and sometimes a fear that any form of apology will amount to an admission of legal liability. Such an admission could have implications for the doctor's professional reputation and career prospects. A face to face meeting with an injured patient may be a very daunting prospect for the doctor concerned. From the trust's point of view, an immediate offer of compensation may not appear to be an effective or prudent use of resources.

31.    There are, nevertheless, good reasons for adopting such an approach. Most importantly, unless the patient himself opts to go elsewhere, the hospital and the individual doctor have a continuing obligation to care for a patient who has been injured by negligent treatment. In some cases, at least, that obligation includes the provision of financial compensation to pay for rehabilitation. Secondly, from the hospital's point of view it will be easier to trace the relevant records and carry out an investigation if a potential claim is identified as early as possible. Finally, an open approach is also in the interest of the doctor because an explanation or apology will resolve some cases without the need for litigation.

32.    In my discussions and correspondence with doctors, I have been encouraged by the extent to which this more open and enlightened approach to patients is now increasingly recognised and accepted as a matter of good practice. This is, however, far from universally the case, although the system of clinical audit encourages doctors to report adverse outcomes. Doctors need support in any subsequent investigation or litigation and disciplinary proceedings against the minority of incompetent doctors should be clearly separate from this procedure.

33.    I have no doubt that the more systematic and professional approach to claims management which the NHSLA is encouraging will help to achieve the necessary change of culture. This is, however, not the only way of tackling the problem. The fear of litigation among so many doctors is often based on ignorance of the legal system. I have heard, for example, of doctors who were unclear about the difference between civil and criminal proceedings, and afraid they might be sent to prison if they were 'found guilty' of medical negligence. To ensure that they are properly informed, I believe that all doctors should be given, as part of their basic medical training, an introduction to the legal context of their work, including an indication of what is involved in a claim for negligence.

34.    One specific suggestion which has been made to me in the course of the Inquiry is that there should be an obligation on doctors, as part of their ethical code, to inform their patients if they discover an act or omission in their care and treatment which may have caused injury, and that doctors who fail to comply with such a duty should be subject to disciplinary action. It is suggested that nurses, midwives and other healthcare professionals should have corresponding obligations. There is a comparable requirement in the Law Society's code of professional conduct for solicitors to notify their clients when they become aware of a possible negligent act or omission.

35.    It is, in fact, arguable that such an obligation already exists under the common law. In 1987 Sir John Donaldson, then Master of the Rolls, said:

There has, however, been no binding decision of the courts as to the existence of such a duty.

36.    I recognise that there may be considerable difficulties in defining such an obligation so that it could be meaningfully embodied in a rule of conduct. What is appropriate for lawyers cannot be assumed to be right for doctors, because of the very different ways in which the work of the two professions is organised. Moreover, the doctor/patient relationship is a uniquely personal and sensitive one. Nevertheless, I suggest that the General Medical Council and other regulatory bodies could usefully consider how to clarify and promulgate the responsibilities of healthcare professionals in these circumstances.

Pre-litigation procedure
37.    Some of the major sources of cost and delay in medical negligence cases arise at the pre-litigation stage.

(a) Inadequate incident reporting and record keeping in hospitals, and mobility of staff, make it difficult to establish facts, often several years after the event.

(b) Claimants must incur the cost of an expert investigation in order to establish whether they have a viable claim.

(c) There is often a long delay before a claim is made.

(d) Defendants do not have sufficient resources to carry out a full investigation of every incident, and do not consider it worthwhile to start an investigation as soon as they receive a request for records, because many cases do not proceed beyond that stage.

(e) Patients often give the defendant little or no notice of a firm intention to sue. Consequently, many incidents are not investigated by the defendant until after proceedings have started.

(f) Doctors and hospital staff in general are traditionally reluctant to admit negligence or apologise to or negotiate with claimants, for fear of damage to their professional reputation or career prospects.

38.    An effective pre-action procedure for medical negligence cases therefore needs to:

(a) encourage early communication between claimants and defendants, and ensure that any appropriate apology or explanation is always offered to the claimant;

(b) set a challenging but realistic target for disclosure of medical records by defendants;

(c) ensure that the claimant knows what options are available (including ADR) and what each will involve;

(d) require the parties to consider whether joint instructions to an expert would be possible, at least on some of the issues in the case; and

(e) provide an early opportunity for defendants to identify cases where a full investigation is required.

39.    Under the present arrangements a hospital faced with the possibility of a medical negligence claim has a number of very real practical problems to contend with. The difficulties of finding patients' records and tracing former staff are endemic problems which, in many cases, are unfortunately exacerbated by late notification of the claim to the defendant, and by the hospital's own failure to record adverse incidents. When a medical procedure goes wrong, it is natural that the first reaction of both doctor and patient is to take restorative measures. The patient may not even consider the possibility of a claim until a protracted course of treatment has been completed. Late notification of a claim creates difficulty for the claimant in establishing liability, while the defendant is faced with all the problems of carrying out an investigation possibly several years after the event, when records may have been lost and staff who have moved away are difficult to trace. This is a situation which can only accentuate the lack of trust between the two sides.

40.    In the NHS the establishment of the NHSLA is likely to have a significant impact on the standards of record keeping and incident reporting in hospitals. Improved technology and information systems could, in any event, have a significant impact on record storage and retrieval. I am very encouraged by what I have learnt about the current practice of the more progressive NHS trusts, which have already appointed professional claims managers to adopt a more pro-active approach to risk management. I look forward to a more general movement in this direction once the administrative changes come fully into effect. I am pleased to say that my Inquiry has already contributed to this development, by providing a forum for discussion and spreading the message about best practice among doctors and health service administrators.

41.    Patients seeking access to their medical records for possible use in litigation had, in the past, been faced with a slow and expensive procedure. This situation has improved following the Access to Health Records Act 1990, which makes it more difficult for a hospital or trust to justify withholding records which a patient is entitled to see under the Act. The NHS Code of Practice on Openness, which has been in force since June 1995, is non-statutory and does not add to the rights of access created by the 1990 Act, but it should contribute to a climate of greater openness in the NHS. Those who are unable to gain access to the information they request from the responsible NHS body may complain to the Health Service Ombudsman.

42.    There was a further step forward in August 1995 when the Law Society, with the support of the Department of Health, launched a protocol designed to make the process quicker and cheaper through the use of standard forms of application and response. This is a very encouraging development, although I understand that the protocol is not yet universally followed either by claimants' solicitors or by hospital trusts. It is, in any event, limited in scope. I hope that in due course it will be possible to build on this approach by introducing an extended protocol covering pre-litigation activity more generally.

43.    There are occasionally disputes between parties on the breadth of discovery to be provided in a potential clinical negligence claim. Under the existing rules of court a potential claimant can apply to the court before proceedings have commenced for discovery (disclosure) of documents by the potential defendant, but cannot apply for disclosure by a third party until after the issue of proceedings. This may cause difficulty in medical negligence cases, where the patient's previous medical history is often relevant to the claim and access is needed to records held by the patient's general practitioner or by another hospital. Time and money may be wasted if an expert writes his initial report on the basis of an incomplete history, and then changes his view once the rest of the records become available. I therefore recommend that legislation should be amended to enable potential claimants to apply to the court for pre-action disclosure of documents by someone who is not a party to the proposed litigation.

44.    The problem of tracing former staff should, in time, become less serious as procedures in general are speeded up. In the meantime, however, more positive ways of tackling this need to be considered. At present I understand that NHS trusts normally keep employment records for around 6 years, and superannuation records are kept permanently. There may be some scope for extending this or making more use of the existing information.

45.    I have already mentioned that one of the difficulties faced by NHS trusts is that of deciding whether a potential claim is worth investigating, and at what stage. The point has been made to me (by, among others, the Law Society) that it is anomalous that potentially serious negligence claims are not automatically investigated until proceedings are issued, whereas the new NHS complaints procedure requires an investigation of all complaints.

46.    I agree that any attempt to distinguish 'complaints' from 'claims' must in some respects be artificial. To the extent that a valid distinction can be drawn, it would appear more logical to concentrate resources on the investigation of the more serious complaints, which are likely to include those involving allegations of negligence. I do accept, however, that it would be unreasonable to expect hospitals to instigate a full investigation every time a patient asks for disclosure of medical records, given the number of potential claims which do not proceed beyond that stage. A more pro-active system of incident reporting in hospitals should facilitate a more informed and rational approach to the identification of cases in need of investigation. I am glad to hear that this is already beginning to happen, particularly in hospitals where professional claims managers have been appointed. It would also help if claimants gave an indication with their request for records that they are considering making a claim and not simply asking for information.

47.    So far I have concentrated on the part to be played by health providers in constructive pre-litigation activity. Claimants (or potential claimants) and their legal advisers must also make a significant contribution. First, if a genuine change in ethos is to be achieved, it is important that solicitors acting for patients do not adopt an unduly adversarial attitude, and that they find out at an early stage what their clients want. It should always be remembered that clients do have their own views, and it is particularly important to establish whether they are mainly seeking financial compensation. Solicitors should not automatically advise litigation, but should explore and provide information about any available alternatives such as mediation or the Ombudsman service. The primary objective of their initial approach to the prospective defendant should be to obtain the relevant information about the patient's treatment (unless the patient has already done this) and then to resolve any dispute by discussion or negotiation. The possibility of mediation or some other form of alternative dispute resolution should be considered at all stages of the case.

48.    Once the patient has made a firm decision to litigate, that decision should be notified to the defendant in a letter before action. Wherever possible, the defendant should be given at least three months' notice that a statement of claim is to be served. The letter before action should give the fullest available information about the basis of the intended claim, in the light of the expert evidence obtained by the patient, and, whenever possible, include an offer to settle. At that stage, defendants who have not already done so should initiate a full investigation of the claim, unless they agree to settle on the claimant's terms. If liability is disputed, defendants must provide a reasoned answer. As part of my proposed system of case management by the courts, any unreasonable delay by either side should be taken into account by the court in setting timetables and making directions for the conduct of the case, and in the award of costs.

49.    I understand that the new 'umbrella' organisation has undertaken, as one of its initial tasks, to carry forward the development of a pre-litigation protocol for medical negligence cases. I believe that the adoption of such a protocol will reduce the volume of medical negligence litigation by diverting some cases to alternative methods of dispute resolution and promoting settlement in others. For cases where litigation is unavoidable, the benefits of the protocol should become apparent in an early definition of the issues between the parties and a speedier resolution than is normally possible under the existing, less co-operative approach.

Alternative dispute resolution
50.    There is in existence an expanding range of alternative dispute resolution mechanisms for medical negligence claims which may be better suited than litigation to the needs of both patients and doctors. This applies especially to smaller claims, and to those where financial compensation is not the patient's main or only requirement. It is, however, important to ensure that informal procedures do not put claimants at a disadvantage because of the inevitable imbalance of knowledge and power between patients and hospitals.

51.    The first possibility, at least for hospitals with professional claims managers, is in-house resolution. This need not have any cost to the patient, has the advantages of speed and informality, and is most likely to be effective when the claims manager has full authority to agree financial compensation up to a limit set by senior managers. It also has the flexibility to provide non-monetary redress when that is what the patient wants. In-house resolution does, however, carry the risk - whether real or perceived - of providing a solution which under-compensates the patient or fails to take his or her interests fully into account. I believe that the benefits outweigh the risks provided that claims managers are properly trained and act responsibly. They should recognise their obligation to put the patient's interests first, and should be able to identify cases which are too complex, or where the potential quantum is too high, for informal resolution. Above all, they should always advise patients as to the need for independent advice, and consider advancing the cost of this. Provided these conditions are met, I believe that in-house resolution may be the best means of settling relatively small and simple claims.

52.    Mediation offers a further possibility for out of court resolution. In April 1995 the Department of Health set up pilot mediation schemes for medical negligence cases in two regions: Anglia and Oxford, and Northern and Yorkshire. Participation in the schemes is voluntary, and they are concentrating on cases where legal proceedings have already started. There will be an independent evaluation which is due to report in the autumn of 1997. The Department of Health has also considered the possibility of an arbitration scheme for medical negligence cases, but concluded after consultation that claimants would be unlikely to accept the binding nature of an arbitration award.

53.    Work carried out by the ADR sub-group of the Medical Negligence Working Group suggests that it may be possible to mediate cases successfully before proceedings are started, provided the claim can be valued. Exchange of experts' reports and witness statements may in some cases be unnecessary; the basic requirements are for both sides to have a condition and prognosis report which they are happy to use, a reliable estimate of value, copies of the medical records and their own expert reports.

54.    I regard this as a very promising development, and one which could result in a significant number of medical negligence claims being resolved without litigation. I understand that work on pre-litigation mediation is continuing, and I hope that in due course it will be possible for guidelines to be produced and incorporated in a pre-action protocol. As I have said elsewhere in this report, this approach will be more effective if legal aid is made available for pre-litigation resolution and ADR.

55.    I have considered the suggestion that some form of ADR should be a compulsory precursor to litigation, at least in smaller medical negligence cases. Such a requirement would not, in any event, be realistic at present, given the limited availability of ADR, and as a matter of principle I think it is preferable to encourage rather than to compel its use, as I proposed in the interim report. If the development of in-house resolution and mediation continues, these are likely to prove attractive options for smaller cases on economic grounds. Their use can be encouraged by protocols, and failure to follow the protocol should be taken into account by the court in any subsequent proceedings.

Do medical negligence cases need special treatment by the courts?
56.    Medical negligence cases in the High Court are at present treated as part of the general business of the Queen's Bench Division. I proposed in my interim report (chapter 12, paragraph 25) that the work of that Division should be divided between a general list (to be known as the General, Personal Injury and Damages List) and a number of special lists. Medical negligence work is significantly different from, and in many cases more complex than, ordinary personal injury cases, and effective case management (including trial management) requires a degree of familiarity with standard medical practices and procedures which is unlikely to be acquired by judges who only occasionally deal with medical negligence cases. I have therefore concluded that the special lists in the Queen's Bench Division should include a separate medical negligence list. I believe that arrangement will foster the appropriate degree of special experience and expertise among the judiciary which is needed for the efficient and effective disposal of these cases.

57.    Outside London, I propose that medical negligence cases, at both High Court and county court level, should be handled at specially designated court centres where both the judiciary and staff will have the opportunity to build up experience and expertise in this work. I have received clear indications that litigants and their legal representatives would be prepared to travel a considerable distance to have access to specialist procedural and trial judges. The problems of distance will be overcome in time by the use of video conferencing and other technology, and there is already scope for using telephone conferencing facilities for straightforward procedural matters.

58.    Depending on the volume of cases there should be regional lists, or perhaps a national list, to facilitate the flexible allocation of cases for trial and reduce delay. The precise solution to be adopted will depend on the volume of cases going through the courts, which will need to be ascertained as part of the process of implementing my proposals for case management generally.

59.    The question of specialisation leads naturally to that of training. Medical negligence is a highly technical area where judges (unless they happen to belong to the minority who have medical as well as legal qualifications) will inevitably know a great deal less about the subject matter of the litigation than other participants, notably the defendant, the expert witnesses, and the lawyers who are becoming increasingly specialist in this area of litigation. If case management is to work effectively, it will be essential for the procedural judge to have some understanding of the substantive issues in the case. I believe that trial judges would also benefit from specialist training, although I have no doubt that it is possible for a trial judge to acquire enough background information on a particular case to make a reasoned decision on the issues. Indeed, it is one of the functions of the parties' representatives, and in particular of the expert witnesses, to ensure that he does so. However, it takes longer to conduct a case if the judge has to be 'educated' in this way. It is also difficult for the judge to have the authority needed to manage a case well if he is less experienced than the lawyers who are appearing before him.

60.    There are ways in which it can be made easier for both the procedural judge and the trial judge to assimilate the essential knowledge for a particular case. For example, the parties' advisers can produce summaries of technical documents, core bundles of essential papers, or a glossary or synopsis of the relevant medical issues. Some judges, I know, would gladly accept this level of help, but do not see the need for any wider training in medical issues.

61.    Again, while I can understand that position, I do not think it goes far enough. Under the new system of civil litigation which I have outlined in my interim report, both procedural judges and trial judges will play a much more active part than they do at present in the management of cases. They will be expected, for example, to narrow and define issues as the case progresses, and will have extended powers to exclude evidence. They will not be able to carry out this new role effectively if their grasp of the technical background to the case is solely dependent on briefing from the parties and their advisers; they will need to have sufficient confidence to form an independent judgment and overrule the parties when necessary.

62.    For these reasons I believe that some form of training in medical issues is essential for judges who seek to become specialists in this area, to reinforce the expertise they will acquire through regular handling of these cases. I therefore recommend that the Judicial Studies Board should investigate, with the help of appropriate medical experts, the scope and content of training in medical issues for procedural and trial judges; and organise the necessary training. I have no doubt that the appropriate expert help can be provided by the various medical royal colleges and by AVMA, all of whom have told me in the course of the Inquiry of their willingness to assist, for example by giving advice or providing specialist lecturers.

Expert evidence
63.    Medical negligence differs from other personal injury litigation in the parties' greater reliance on expert medical evidence for issues of causation and liability as well as quantum. Causation is more difficult to establish than in other personal injury cases. This is because the effects of the allegedly negligent treatment must be distinguished from those of the patient's underlying condition which gave rise to the need for treatment. Liability is often very difficult to establish. It must be determined by the principle stated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582:

64.    This is not significantly different from the test used in any professional negligence litigation, but it causes greater difficulty for the courts than would a claim for negligence against, say, a lawyer or an accountant, because of the technical issues involved. The assessment of damages, although essentially a similar exercise in all personal injury cases, is often complicated in medical negligence, because the court must compare the claimant's actual condition and prognosis with the hypothetical condition and prognosis if the patient had received competent medical treatment. The court must only compensate for the injuries caused by negligent treatment, not for any underlying condition.

65.    For the resolution of all three issues - causation, liability and quantum of damages - the parties and the courts are dependent on medical and other expert evidence. This is not only expensive, especially if experts from several specialities are used by each side, but may also be a source of delay because of the time taken by the experts to produce their reports. Generally speaking, expert witnesses in the medical field have less time to spare for legal work than experts in other fields.

66.    All practitioners in this field know the peculiar difficulty of finding the information necessary to determine whether a potential claimant has a case. This is not simply a matter of establishing the facts, although that in itself is often difficult enough, but of finding an expert medical opinion to support the claim.

67.    Traditionally, there has been an understandable reluctance on the part of doctors and other healthcare professionals to criticise their colleagues. Their reluctance was accentuated by the fact that the defence in the majority of medical negligence cases was conducted by the medical protection bodies, of which doctors themselves were members. This resulted in a shortage of medical experts who were willing to work on behalf of claimants, which in turn led to heavy demands on those who were prepared to do the work, and to a tendency for them to spend more time preparing medico-legal reports than providing treatment. The end result was that their standing in the profession was lowered, and other doctors were even more reluctant to be associated with claimants.

68.    It would be difficult to exaggerate the effect on potential claimants of the problems they encounter in obtaining information, coupled with the knowledge that defendants have easy access to medical information and opinion. I am glad to say there have been some improvements since my own experience in practice, but many claimants still feel strongly that the system is weighted against them, and in particular that professional solidarity among doctors is a barrier to justice for ordinary people. Whether or not this feeling is always justified, I have no doubt that it is encouraged by the lack of openness between parties which still prevails in this area of litigation.

69.    My general approach to expert evidence in the context of a case-managed system was set out in chapter 23 of the interim report. I recommended that the scope of expert evidence in a particular case should be under the control of the court; that a single expert (whether jointly instructed by the parties or appointed by the court) should be used wherever possible; and that, where this was not appropriate, the issues between opposing experts should be narrowed and outstanding areas of disagreement defined as early as possible.

70.    In chapter 13 of this report I have given an account of the Inquiry's work on experts since the interim report, and explained how my general approach is to be put into effect through the new code of procedural rules. I revert to the subject in the present chapter in order to consider how the approach will work in the specific context of medical negligence litigation.

71.    The vast majority of people consulted by the Medical Negligence Working Group, including many with whom I have discussed the matter personally, see no scope for the joint appointment of liability experts in medical negligence, except perhaps in the smallest and most straightforward cases. The most commonly cited reason for this is the special nature of the Bolam test (see paragraph 63 above), which requires the court to be apprised of the whole range of acceptable medical practice in a given speciality.

72.    I accept that in some medical negligence cases the issues of causation and liability will be too complex to be decided on the basis of evidence from one medical expert in the relevant speciality or specialities. I do not, however, agree that it is an inevitable consequence of the Bolam test that each side must instruct its own experts on all issues in every case. In a straightforward case it may be perfectly possible, and appropriate, for a consultant to advise the court not only of his own practice in relation to the alleged negligence, but of the range of practices regarded as acceptable by his colleagues. Conversely, in an exceptionally complex case, or one where the treatment given was at the 'cutting edge' of medical science, it is by no means self-evident that two opposing experts will be able to represent the whole spectrum of professional opinion.

73.    It is part of my approach to expert evidence in general, as set out in chapter 13 of this report, that parties must consider whether a particular case or issue could be dealt with by a jointly instructed expert. In medical negligence cases, I suggest this will apply in particular to:

(a) quantum issues, such as future care costs;

(b) medical issues which are uncontroversial (such as the precise nature of a tumour, for example);

(c) condition and prognosis in straightforward claims; and

(d) liability in claims under £10,000.

74.    As I see it, one of the fundamental problems in medical negligence litigation is polarisation of experts: the situation is all too common where neither side knows until a very late stage in the case on what evidence the other is to rely. Joint instruction of an expert by both parties is clearly one way of overcoming the problem; but, as I have already discussed, that will not be appropriate in all cases. In cases where opposing experts are involved, it must be a prime objective to identify areas of agreement and disagreement between the experts as early as possible, and, if the case proceeds to trial, to ensure that the outstanding issues are clearly identified for the court.

75.    The principle of mutual and simultaneous disclosure of expert evidence is well established in medical negligence litigation, and is strongly supported by a number of those who have contributed to this part of the Inquiry. Nevertheless, I believe it is worth reconsidering. Sequential rather than simultaneous disclosure of expert evidence could, at least in theory, reduce delay and cut down the amount of work needed on medical negligence claims. Defendants tend to support this, on the basis that the claimant's report would be disclosed first and might persuade some defendants to settle without going to the expense of obtaining their own reports. The opposing argument which has been put to me is that simultaneous disclosure is a more effective way of establishing the true facts of the case. On this view, sequential disclosure encourages the defendant's expert to focus on (and possibly attack) the points made by the claimant's expert, instead of carrying out a full and independent investigation. This, it is said, is in neither party's real interest, because a factually inaccurate view of the incident is unsafe and likely to be exposed at trial, sometimes at enormous expense.

76.    For ordinary personal injury litigation, pre-action protocols are being developed on the basis that the claimant will instruct an expert who is approved by the defendant, and that the defendant will accept the claimant's report without instructing a separate expert. In principle, I see no reason why a similar approach could not be adopted in medical negligence, at least for the smaller and more straightforward cases. For the time being, I have to recognise that this would not be acceptable to claimants, but I strongly urge that it should be seriously considered by those concerned as part of the more co-operative approach which I am aiming to establish.

77.    It emerged from the working group's consultation exercise that meetings between opposing experts were rarely used in medical negligence cases, but that there was a strong view that they might be a helpful way forward. I have dealt with the arguments for and against experts' meetings in chapter 13 of this report, where I concluded that in the majority of cases the benefits should outweigh any disadvantages in terms of cost and inconvenience. I mentioned the particular problem in medical negligence that private meetings between experts would not be acceptable to patients. To meet this, I proposed that experts' meetings should normally be held in private, but that when the court directs a meeting the parties may apply to the court for any special arrangements.

Quantification of medical negligence claims
78.    One particular feature of medical negligence litigation (and, indeed, of personal injury claims in general) which has come to my attention in the course of the Inquiry is the enormous amount of time and money which is spent on quantification of the more substantial claims. There are a number of ways of tackling this, all of which will require a greater emphasis on co-operation and joint planning of quantum resolution. Particularly in larger cases, this is a matter that should be dealt with, either by the parties themselves or with the help of the procedural judge, as part of the case management process.

79.    First, to avoid waste of resources, it is important to ensure that detailed quantification work is done at the most appropriate stage of the case. Defendants want claimants to value cases at an early stage, because it encourages early settlement or at least enables the defendant to estimate his liability. But in complex cases where prognosis and needs are unclear, this is too expensive and leads to repetition. Early quantification can also be wasteful of resources when there is a real dispute on liability; in such cases, consideration should be given to deferring quantum evidence until the issue of liability has been dealt with.

80.    Working out the detailed cost of a care regime for a severely injured patient requires contributions from experts in a number of different fields, including, for example, architects, employment consultants, nurses, physiotherapists, and accountants. Wider use of single experts in each speciality will go some way to reducing the cost of the exercise, but without a more radical approach this is likely to produce only limited savings. Standard tables should be drawn up and, wherever possible, used to reduce the need for separate calculation in individual cases.

Case management in the multi-track
81.    Chapter 5 of this report explains how my proposals for case management on the multi-track will be embodied in the new rules. My overall approach is that uniform rules should apply, so far as possible, to all types of cases, with special provisions kept to a minimum. The general rules will be sufficiently flexible to accommodate appropriate variations of practice and procedure for particular categories of cases, such as medical negligence, or for individual cases. For example, the standard time allowed for filing of a defence will be 28 days, which is unlikely to be sufficient in any but the most straightforward medical negligence cases. The rule will permit parties to agree an extension up to three months, and to apply to the court for any further extensions.

82.    As experience is gained of the new system, I would expect the rules to be supplemented by judicial practice directions, and published practice guides, which will indicate how the rules are to be applied to different classes of cases. Ideally, the production of the various guides should be supervised by the Civil Justice Council whose establishment I recommended in the interim report. In the particular instance of medical negligence, the work could be started at an early date by the new 'umbrella' organisation, building on the detailed work on case management and procedure which has already been done by the working group.

How to deal with smaller cases
83.    I have already pointed out that the problem of disproportionate cost is particularly acute in smaller medical negligence cases. This creates a drain on the legal aid fund, as well as on the resources of the NHS. It also denies access to justice for potential claimants who are not eligible for legal aid, and for whom litigation would be uneconomic.

84.    In the interim report I proposed a new 'fast track' procedure, which would enable most straightforward cases up to about £10,000 to be litigated simply, quickly and at a proportionate cost. A more detailed procedure is set out in chapter 35 of this report.

85.    I accept that the standard fast track will not be suitable for the vast majority of smaller medical negligence cases. Preliminary investigations can be just as lengthy and expensive whatever the value of the claim, and expert evidence on liability may be just as strongly contested. These are the main factors which would make it impossible to impose the normal fast track timetable and costs limit in small medical negligence cases.

86.    I have considered in chapter 2 of this report the arguments put forward by APIL and others that proportionality of costs to compensation would be a denial of access to justice because parties must be allowed to argue their cases fully, regardless of cost. This view has been expressed particularly forcibly by some contributors to the Inquiry in respect of medical negligence. I agree that the special features of medical negligence claims, which I have already identified, make them more expensive to litigate than ordinary personal injury cases of equivalent value, and that this must be reflected in the level of recoverable costs. Even on the standard fast track, as I have explained in chapter 4, I accept that there will need to be different levels of costs for the straightforward and the more complex cases. In other words, strict proportionality, in the sense of a fixed percentage to apply to all cases of the same value, is not a realistic proposition.

87.    This does not mean, however, that we should abandon all attempt to achieve a more proportionate use of resources in medical negligence, or in any other areas of litigation. On the contrary, I believe that the disproportionate use of resources in this area is unsustainable. Excessive cost and delay deny access to justice and divert scarce human and financial resources in the NHS away from its primary objective of providing health care.

88.    In February 1996 Nottingham Law School organised a one-day conference for the Inquiry on the scope for a fast track for medical negligence cases. It was set up as a hypothetical case study, moderated by Lord Justice Otton and assembled in sections for claimant lawyers, defendant lawyers, managers, doctors and neutrals. There was an interactive voting system which enabled conference delegates to give their views on a range of questions at various stages of the proceedings. One of the most significant findings, in my view, was that the majority of people thought the present cost of litigating small medical negligence claims was too high.

89.    With the help of the working group, and of other contributors to the Inquiry, I have explored various options for dealing with smaller medical negligence claims in a more proportionate way. The three main options to emerge from this work, which were examined at Nottingham Law School's conference by reference to two hypothetical case studies, are:

(a) a 'modified fast track', with

(i) a simplified procedure focusing on joint instruction of a single jointly chosen expert;

(ii) only one lawyer for each side attending the trial;

(iii) an overall costs cap of £3,500 applying to all cases on the fast track;

(b) a 'best practice' approach which:

(i) is based on existing procedure but assumes a more efficient approach by litigators and the courts;

(ii) does not attempt an arbitrary pre-set costs limit, but suggests a budget related to defined stages of litigation which would amount to a total of around £4,000 on each side; and

(c) the 'streamlined track' which I have proposed in chapter 5 of this report for cases at the lower end of the multi-track, and which would include:

(i) a tailor-made procedure and pre-set budget for each case;

(ii) a target maximum timescale of 18 months;

(iii) a requirement for joint instruction of a single expert after the case management conference, to act as adviser to the court and neutral evaluator of the evidence put forward by the parties' experts.

90.    Any of these options would achieve the objective of enabling smaller medical negligence cases to be litigated on a modest budget known in advance. I believe it would be inappropriate at this stage to prescribe a single, mandatory system, and that the Court Service should facilitate pilot studies enabling each of the possible approaches to be tested at selected courts.

91.    I have already mentioned that alternatives to litigation may provide the best solution for smaller medical negligence cases. There is a view, held, among others, by the Law Society, that it is better to channel smaller medical negligence claims out of the court system than to make it easier for them to be litigated. The Society has accordingly proposed that claims up to £10,000 should be dealt with under a modified version of the new NHS complaints procedure, as a compulsory precursor to litigation. I have some sympathy with the idea of a combined procedure for complaints and claims, particularly for cases where the monetary value is below £5,000. It would not, however, be realistic to recommend it at present, given that the new NHS procedures are expressly designed to deal with complaints separately from claims for compensation. In any event, I have reservations about making such a system compulsory, especially since the length of the proposed procedure (up to 18 months) would cause serious delay in cases which could not be resolved without subsequent litigation. I hope, however, that the scope for including smaller medical negligence claims will be reconsidered in the context of any future changes to the NHS complaints system.

The future
92.    If my recommendations for reform in this area of litigation are successfully implemented, the overall result should be that more patients who have suffered negligent medical treatment obtain the redress they are seeking (whether financial or otherwise) within a shorter timescale and at a significantly reduced cost. That does not necessarily imply a large growth in the volume of litigation, provided that informal negotiation and alternative dispute resolution mechanisms are used in the ways I have suggested. The system should be fairer and more open than it is at present, and I believe that the benefits of this will be felt by doctors, other healthcare professionals and health service administrators as well as by patients.

93.    Some contributors to the Inquiry have suggested that more radical change is needed, such as a modification of the test of negligence which is currently applied by the courts or replacement of tort-based litigation with a system of no-fault compensation for some or all medical negligence claims. These matters are not within the remit of my Inquiry; consideration of them is a matter for others if they think it is appropriate.

Recommendations
My recommendations are as follows.

(1) The training of health professionals should include an introduction to the legal context of medical work, including an indication of what is involved in a claim for negligence.

(2) The General Medical Council and other regulatory bodies should consider whether a rule of professional conduct is needed to clarify the responsibility of healthcare professionals to their patients when they discover an act or omission in which they may have been negligent in their care and treatment.

(3) The NHS should consider tackling the problem of tracing former hospital staff, by improving hospital record systems or making more use of existing information.

(4) A pre-litigation protocol for medical negligence cases should be developed. As part of the protocol, claimants should be required to notify defendants of a firm intention to sue in a letter before action. The letter should include the fullest available information about the basis of the intended claim, and should wherever possible give at least three months' notice that a statement of case is to be served. If liability is disputed, defendants should be required to provide a reasoned answer.

(5) The use of alternative dispute resolution mechanisms should be encouraged in medical negligence, especially for smaller claims. Solicitors acting for patients should not automatically advise litigation but should inform their clients of all the available options, including the Health Service Ombudsman, and consider the possibility of alternative dispute resolution at all stages of the case.

(6) The specialist lists in the Queen's Bench Division of the High Court should include a separate medical negligence list.

(7) Outside London, medical negligence cases at both High Court and county court level should be handled at specially designated court centres.

(8) There should be regional lists, or a single national list, to facilitate the flexible allocation of cases for trial and reduce delay.

(9) The Judicial Studies Board should investigate, with appropriate medical experts, the scope and content of training in medical issues for procedural and trial judges, and organise the necessary training.

(10) Standard tables should be used wherever possible to reduce the cost of quantifying complex medical negligence (and other personal injury) claims.

(11) There should be a practice guide to indicate how the new rules on case management and procedure will apply in detail to medical negligence litigation. The guide should be developed by the new 'umbrella' organisation for medical negligence or under the aegis of the Civil Justice Council.

(12) The Court Service should facilitate a pilot study of the various options for dealing with medical negligence claims below £10,000, to establish which is the most effective procedure for enabling these cases to be litigated on a modest budget.