Introduction

I’m an eighties child. Well, I was born in 1973. But, I came to life in Polka Dot leggings and badly crimped hair in the 1980’s. My memories of the adverts that aired on television in the early eighties, were commercials about the famine in Ethiopia. Towards the end of the decade, I mainly remember the adverts about the HIV/AIDS epidemic. There is a gap in my memory. I cannot remember the year that the Tsunami of ‘No Win-No Fee’ adverts hit the British shores. As a guestimate, I would say it was sometime in the early 1990’s.

‘No Win-No Fee’ culture refers to the free access that a claimant has to funding a medical negligence claim against a hospital or GP Practice for malpractice. If a solicitor takes on a case under a ‘No Win-No Fee’ agreement, the claimant will not be liable to pay any legal costs if they do not win the case. The ‘No Win-No Fee’ agreement has allowed many more people to make medical negligence claims.

The ‘No Win-No Fee’ culture is now a prevalent part of our society, and it has changed the landscape of doctoring and medicine, from one of care and love, to one of fear and defensiveness. The rampant suing culture has made doctors afraid and self-protective. This post discusses how the ‘No Win-No Fee’ culture has created a climate of fear and distrust and disabled the authenticity of the doctor-patient relationship.

Fear of litigation has resulted in significant harm to the quality of public services, the experiences of those who use them, and the role of professionals. The fear of litigation stifles innovation and leads to defensive practices.[1]

The Patient’s Perspective

When something goes wrong with patient care, patients want it to be put right. Lives are destroyed by medical accidents. Patients want their lives back. Three billion pounds would not buy me back the last eleven years. It would neither buy me back the woman who I was, and it would certainly not erase the traumatic memories that I have of these brutal consultations with surgeons.

However, if a clinician could diagnose and treat my facial pain, this would buy me my future. I would then be able to rebuild a normal life. The last thing that I would choose to do, is spend another decade wading through the judicial system. I reckon that 70% of the population would say the same. Yes, there are situations when it is right for a patient to bring a medical negligence claim against an NHS trust. But mostly, I think, patients want resolution. I certainly do.

After harm in healthcare, patients value patient safety efforts so that other patients do not need to endure the same suffering. Injured patients value disclosure and discussions that are compassionate, efficient, transparent, honest and include a genuine apology. [2]

An Incident

In 2019, I had a stern insight into the impact that the suing culture has on the doctor-patient relationship. I had an appointment to see a Head and Neck surgeon at an NHS Teaching Hospital. I had already been to this NHS Trust twice; once to the oculoplastic department re my periocular pain. They discharged me after one appointment with no diagnosis or treatment. I had also been to the Oral Maxillofacial Department, re the residual pain in my parotid gland. They too, discharged me after one consultation, with no offer of any help. This was my third visit to this NHS Trust.

I was waiting outside the consultant’s room. A nurse walked past me, carrying my notes, which she was delivering to the consultant. She dropped them on the floor, by accident. My file landed face up. I couldn’t believe my eyes. I saw a green medico-legal form, that the NHS trust had already filled in. They had begun a defence to a medical negligence claim, but I had not even been to see a solicitor. I had not filed a claim against them. This incident just demonstrates how fearful the medical landscape now is.

It was not a productive appointment. The surgeon was shifty and defensive, while I was reeling from the shock, from having seen the completed medico- legal form in my file. There was no space between us, for an honest or helpful conversation about my facial pain. We were both dancing around a puddle of fear.

Medical malpractice litigation stifles the patient voice and harms patient-provider relationship, by conceptualising patients as adversaries rather than partners. These issues hinder transparency and communication, and perpetuate distrust. Medical malpractice encourages defensive medicine.[3]

Non-Adversarial Resolution

The Standards Authority for Health and Social Care argues that a move to a non-adversarial clinical negligence system would ‘encourage a more open, constructive approach to clinical incidents, which would be beneficial to patient care and safety.’ (2.1) It states that ‘the fear of litigation is a key source of reticence among healthcare professionals in coming forward when avoidable harm has occurred.’ Their submission refers to a framework that was pioneered by The University of Michigan, that encourages early disclosure where things have gone wrong in healthcare. ‘The system has seen a drop in new lawsuits, and clinicians across U-M’s hospitals have felt freer to report situations that caused harm.’ (2.2) This has led to faster responses to investigate situations and reduced the chance of harm in the future.’[4]

Alternative Resolution Systems

Jennifer Schulz evaluates two other models of non-adversarial systems which resolve harm in healthcare; New Zealand’s Administrative Compensation Scheme, (ACC) and the USA’s Communication-and-Resolution Program, (CRP.) Shultz calls out for reform of England’s Medical Negligence system, and advocates for a no-fault compensation scheme, which values what patients want and need, after harm in healthcare. She argues that medical negligence litigation is misaligned with patients’ needs after harm. ‘Medical negligence litigation is an anathema to values in healthcare, particularly patient-centred care. It facilitates a “deny and defend” approach, whereas alternative approaches facilitate a “disclose and apologise approach.” The CRP and ACC no-fault schemes place the needs of the injured at the centre, which is consistent with patient-centred care, and values of honesty, disclosure, transparency and communication.’ [5]

NZ’s Accident Compensation Corporation (ACC)

1. New Zealanders apply to the ACC scheme for rehabilitation and compensation. The compensation standard is ‘no-fault’ as opposed to negligence.
2. The right to claim compensation is based on the injured person coming with the statutory conditions for cover, not on questions of liability. The first step for obtaining cover is that an injured person should get treatment from a healthcare provider.
3. Remedies offered by the scheme include; treatment, rehabilitation, earnings compensation and a lump sum for permanent impairment, instead of solely compensation.
4. The public can claim for ACC without the need for a lawyer. Patients are able to complete a simple document themselves.
5. Fears about the ACC scheme are accountability. However, if an injured person applies to the ACC for compensation and rehabilitation, they can file a complaint with the NZ health and disability commissioner. The other criticism is that it removes deterrents to injury-producing conduct, which is disincentive to safety. Schultz explains that fault schemes do not have a deterrent impact. Medical malpractice has a deleterious impact. Health providers engage in defensive practises.[6]

Compassion

In the USA, Communication-and-Resolution Programs are the alternative to medical malpractice litigation, in which hospitals disclose medical injuries, explain what happened, apologise, and sometimes offer compensation. They only operate in a small number of healthcare organisations, but ‘they value patient-centred care, patient safety and patient’s needs.’ Shultz’s research found that patients value the compassionate and non-adversarial communication throughout the process, and the ability to heal broken trust between provider and patient. ‘Assuming patients and providers value, honesty, integrity, transparency, communication, trust, and meeting the needs of patients after medical injury, these approaches fulfil those values much better than medical malpractice litigation.’[7]

My Case

There was a lack of transparency about clinical findings early on. Ten-years on, when abnormality shows on tests, histology reports and scans, clinicians fear that if they acknowledge the findings and diagnose my facial pain, that they will make the preceding NHS trusts liable for litigation. That is why, I believe, abnormal results are not being acted on, and no-one will take responsibility for the problem. I also believe this is the unconscious incentive behind a lot of the gaslighting that I have experienced from medical consultants. All I want is for someone from the NHS to come out and say; ‘sorry, we have got this wrong, and we will put it right.’

Human Relationships

Relationships are messy. No human relationship can survive without one person at some point, needing to say sorry for bad behaviour. If neither side ever takes responsibility for the breakdown in the relationship, then the relationship sadly dies. Sorry is not a dirty word. It is a vital word, that salves the wounds of wrongdoing, and allows relationships to repair. Human’s make mistakes. ‘To err is human.’[8] We all get things wrong. It is an integral part of the human condition, and no-one is immune from fallibility, not even doctors.

If our human ability to make mistakes is stifled, we feel suffocated. The ‘No win-No Fee’ culture serves as a tight leash around doctors’ necks. It denies them any room for error and honest evaluation of their conduct. In denying clinicians this ability to self-evaluate, they cannot grow or improve.

Conclusion

Doctors are humans. They will, like all of us, make mistakes and get things wrong. This oppressive ‘No Win-No Fee’ culture disallows for human fallibility. It contributes hugely to the NHS Complaints Procedure being so futile. It is why, I think, clinical teams so routinely cover-up their failings. They fear that if they acknowledge wrong-doing, that they will make themselves liable to litigation.

Doctors need to be granted space to be honest when they get things wrong, without the fear that it will make them vulnerable to legal action. As the Professional Duty of Candour states; ‘Apologising to a patient does not mean that you are admitting legal liability for what has happened. The NHS Resolution advises that saying sorry is the right thing to do, and a fitness to practise panel may view an apology as evidence of insight.’ (15) [9]

The ‘No Win-No Fee’ Culture has had a crushing impact on clinicians’ ability to be authentic with patients. This tight leash around their necks must be loosened, to open up space for greater listening and authenticity within the doctor-patient relationship. Medicine is about healing, love and care, and these principles must be allowed to once again, govern the medical landscape.

England’s review of clinical negligence presents a timely opportunity to present an alternative resolution system to address patients’ needs after medical injury. In a climate where quality and safety, patient-centred care and compassion are heralded as important values in the health-sector, shifting away from medical malpractice litigation, that is misaligned with those values, is much needed.[10]

Foot Notes

[1] Clinical negligence: a culture of litigation? | Medical Negligence and Personal Injury Blog | Kingsley Napley | Independent Law Firm of the Year 2022

[2] Schulz Jennifer; Reforming Clinical Negligence in England: Lessons about Patients’ and Providers’ Values from Medical Injury Resolution in New Zealand and the United States of America © Royal College of Physicians, 2022.

[3] Schulz Jennifer; Reforming Clinical Negligence in England: Lessons about Patients’ and Providers’ Values from Medical Injury Resolution in New Zealand and the United States of America, © Royal College of Physicians, 2022.

[4] Written Evidence Submitted by The Professional Standards Authority (NLR0047) www.professionalstandards.org.uk. All quotations within this paragraph are quoted from this source.

[5] This is taken from the same source as footnote 2&3.

[6] This paragraph on NZ’s ACC Scheme is quoted directly from the same source as footnote 2,3 & 5

[7] Same source as footnote 2,3 & 5.

[8] Kohn L et al; To Err is Human; Building a Safer Health System-PubMed (nih.gov)

[9] The General Medical Council; The Professional Duty of Candour, www.gmc-uk.org

[10] Reforming clinical negligence in England: lessons about patients’ and providers’ values from medical injury resolution in New Zealand and the United States of America – PMC (nih.gov)

Photo Credits; World Sikh Org, Alex Green, Cottonbro, Tima Miroshnichenko, August de Richelieu & Mart Production on Pexels. Cytonn Photography, Dave Lowe, Hunters Race, Thomas Kinto & Brett Jordan on Unsplash.