The litigation landscape continues its inexorable metamorphosis – thank goodness. From the bad old days of trial by ambush, posturing, brinkmanship and one-upmanship, we are lumbering towards a system in which early disclosure of evidence followed by proper litigation risk assessments, mediation and negotiated settlements are the order of the day.
And not a moment too soon. In the notorious (and fictional, of course) case of Jarndyce v Jarndyce in the novel Bleak House, Dickens took the adversarial and bellicose approach to litigation to the extreme, wiping out the family’s entire inheritance in legal costs (when the preservation of that inheritance was the very reason for going to law in the first place) and killing the protagonist in the process.
Nonetheless, there was more than a grain of truth in the utter devastation that the litigation left in its wake and important lessons to learn from it, even today. Which brings me to what this article is about, namely, what is the role of the medical negligence defence lawyer in this day and age? How are our doctors best served by us in this climate of increasing medical negligence litigation and what more can we do to help?
First of all, the basic framework. When a doctor comes to us with a letter alleging negligence there are, broadly speaking, four options: getting the case discontinued (because there is no merit in it), taking it to trial (because nothing will convince us that the claim has merit but the patient doesn’t see it that way), settling it – ie, making an offer – without making any admissions of liability (because there just might be merit in it) and last but not least, settling it on a full admission basis (which hopefully requires no explanation).
To decide which avenue to take, we need to find out exactly what happened and then get independent expert evidence as to whether that particular medical practice was acceptable. We work hard with our doctors to establish what happened on that operating table or during that course of treatment. This is not always straightforward as memory can be unreliable, criticism is the finest way to put people on the defensive and doctors may simply be unclear how much information to share with us (the answer to that question, by the way, is share all of it – we are working with your best interests at heart, lawyer/client communications are entirely confidential and forewarned is forearmed).
And, similarly, we work closely and determinedly with our experts to make sure that they have worked through their opinions thoroughly and logically. After all, if we don’t, the patient’s legal team is sure to do so at trial.
During the course of any case – and this is where the dynamic gets interesting – we wear two ‘hats’. The first is that of quasicounsellor, the other that of reality-tester.
In relation to the first, anyone facing criticism about the work they do with such dedication is likely to feel stung by it and doctors are no exception. Their role is to look after the health of their patients and at the core of the professional mentality is a desire for high standards. Criticism about an isolated incident is often seen as an attack on their general professional competence and can hugely undermine confidence.
Similarly, doctors who have built up a rapport with a patient over a period of time can feel betrayed when the patient then turns round and criticises their management. However calm and collected doctors come across at a first meeting, they usually feel defensive, indignant, upset, vulnerable, angry or all of the above. A vitally important part of our job is to work with that emotional ‘fallout’ and support the doctor throughout the litigation process. We spend our lives within the arena of dispute resolution, and have a profound understanding of the dynamics of conflict and how it feels to be on the receiving end of a claim.
Our other ‘hat’ is that of reality-tester. There comes a stage in every claim where in order to advise our client properly, we need to sit back, look at the evidence rationally and dispassionately and advise our client on the most appropriate option. This objective analysis of the evidence is vital because it ensures the right decisions are taken at the right time and with the minimum disruption to our clients’ lives, but it can also be the most tricky moment in the lawyer/client relationship.
How, after all, is the doctor supposed to believe that we are fully behind him if our advice is that the court will probably consider his actions negligent? Controversial though it may sound, this stage of any claim is ripe with potential and the litigation process, if dealt with skilfully and constructively, has the power to transform.
Once the initial horror of being accused of being negligent has subsided, the whole process of reality-testing the evidence, of encouraging our clients to stand back and look at the care they provided rationally and objectively, can be very liberating and provide important lessons if they have the courage to look for them (and, ironically, it is only by looking at a sequence of events dispassionately that the defence lawyer will see where a true defence lies).
The exercise might move the doctor from a sense of outrage (if he thinks he has done nothing wrong) to an acceptance that things could have been done differently, or the doctor (who thinks he has) from feelings of vulnerability and despair to feelings of confidence in his decision-making processes or clinical skills and awareness that he needs to be more resilient in the face of criticism.
And conversely, for patients who are questioning the treatment they have received, it might actually be comforting – outlandish though this may sound to some in the claimant camp – to find out that the care they received was up to standard even if it did not result in the outcome hoped for. Is there anything worse than knowing that an injury was caused by carelessness?
But there is a further point. The adversarial approach to litigation often wreaks havoc on doctors’ lives. It puts time on hold and encourages an unhealthy preoccupation with how badly the other side is behaving, which leads to a gradual entrenchment of positions that, in turn, leads to an unwillingness to see when the other side might have a point. In short, it encourages a culture of not listening, not communicating and turning a blind eye to any middle ground that may exist. Sadly, this approach still lingers in some quarters, but those who espouse it do both patients and doctors a disservice.
In the words of one management guru, life is a corridor, we are tennis balls and by hitting the walls on either side we can change direction and move ahead. Those walls, in this context, are the adverse outcomes that many doctors will come across at some point in their careers, and which, if they can learn from them, can propel them forward to new and better pastures. The days of old-style, war-like litigation are on their way out and the days of forensic and objective analysis of the evidence and of dealing with the consequences sensibly – whatever that may mean – are in.
We must continue to work hard with doctors to convince them that this new litigation landscape can be a good thing.
Sophie Pearson practised at the Hong Kong office of MPS panel law firm Kennedys in 2013. She is now Trust Solicitor at King’s College Hospital NHS Foundation Trust in the UK.