If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture.
This is the first of a few posts on the recent Commons Committee report – The Safety of Maternity Services in England –
The report includes a section headed – Rethinking the current approach to clinical negligence.
I have to confess to feeling an instinctive sense of unease when politicians talk about ‘rethinking’ or ‘reform’. It rarely ends well.
The report starts out by referring to cost – “Staggeringly, the £1bn paid out in maternity compensation in 2018/19 was nearly twice the wage bill for all of England’s obstetricians and gynaecologists combined”. This is indeed an alarming figure. But we cannot lose sight of the incidents which are leading to these payments. They will not go away just because the system is changed. The report subtly shifts responsibility to claimant lawyers and to victims themselves – “Even more concerning is how much of this rising bill goes on lawyers’ fees” In fairness the report acknowledges the need to learn from mistakes, but the body of the report is not encouraging. In particular we meet a familiar villain – ‘blame culture’.
The report talks of ending this culture. It discusses the problems of ‘compensation based on finding fault.’ This is based on the false assumption that damages claims that arise from negligence in a clinical setting are somehow different from those arising in other contexts. The law of Tort in this country has developed over many years. The law of Negligence has developed within this. As long ago as the 1930s there was a classic legal case, familiar to all first year law students involving a snail in a bottle of ginger beer. Lord Atkin gave us a quote that has underpinned negligence claims –
‘The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question ” Who is my neighbour ?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’*
In other words, if you owe me a duty to take care, if you fail in that duty and I am injured as a result, you (or your insurer) must pay me compensation. This has become such an accepted part of our world that we rarely think about it. If your accountant is negligent and you lose money you expect to be compensated. If your lawyer is negligent and you lose money you expect to be compensated. If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture. This is the danger of focussing on one are of life and treating it differently from others, for political reasons.
The report mentions a ‘new’ approach based on what is avoidable and refers to the experience in Sweden.
This risks setting aside decades of jurisprudence for the sake of political acceptability. The current system of clinical negligence, developed by judges over many decades has given us a strong foundation that has been capable of adapting to change. Two examples come to mind –