Making amends for negligence
BMJ 2004; 328 doi: https://doi.org/10.1136/bmj.328.7437.417 (Published 19 February 2004) Cite this as: BMJ 2004;328:417
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The latest edition of the Law Society's weekly magazine 'The
Gazette'(www.lawgazette.co.uk) reports:
**Concern was raised this week that some City law firms are
attempting to restrict their liability for the potential professional
negligence of solicitors in relation to work done between midnight and
6am.**
Just imagine the reaction if the medical profession even vaguely
suggested such an outrageous idea.Of course,unlike solicitors, doctors are
expected to maintain the same 'magical' level of mental alertness and
stamina from 12-6 and 6-12.But the moment something goes wrong with
medical practice,the liability-free 'night solicitor' will be hounding the
doctor with generous financial backing from 'Legal Aid'.No solace for hard
-pressed doctors. So becoming a 'night solicitor' might be the answer if
one wants to be a liability-free professional;what a wonderful world it
would be for some.
Why don't doctors readily come up with such innovative [and self-
serving] ideas like solicitors?.Or perhaps, some doctors at the BMA House
do quietly develop some good self-serving mechanisms to ensure their
pockets are lined generously[of course,"all above board"], thanks to
subservient BMA members.
Competing interests:
None declared
Competing interests: No competing interests
The various items on clinical negligence in this week's BMJ fail to
address its main weakness: litigation and liability are scarcely related.
Most cases of actual negligence are uncompensated, most cases of alleged
negligence are unsustainable. This is because legal aid, which funds most
cases, is available to only a small proportion of the population and
rewards lawyers for pursuing unmeritorious cases. This is amply borne out
by the dismal success rates. As such, litigation does not provide a
rational system for either compensation or professional accountability.
Anthony Barton
solicitor and medical practitioner
Competing interests:
solicitor practising in pharmaceutical litigation and clinical negligence
Competing interests: No competing interests
First Party Insurance would serve better than third party insurance
There is a standard principal in Britain that if a tile falls off my
roof and injures a passer by, he takes legal action to prove me liable and
this is his passage to a claim on my third party insurance. This has the
disadvantage of his having to show that I was to blame and, more
importantly, removes him from cycle of considering the cost.
Think how this would look if the standard insurance were not third
party but first party - that he insured himself against all risks. He
would claim off his own insurance for the injury. He would not have to
show blame - just the injury and would be included in the loop of cost.
Advantage that he would insure himself at the level that he considered
appropriate to his needs - and pay a premium level appropriate to his
cover. Those who did not make any claim would presumably be given a no-
claims bonus
The present system encourages the misapprehension that a claim costs
the claimant nothing. Claims like this do cost us all a great deal of
money as the third party premiums are incorporated into all prices (or
taxes if the third party is a government body)
Taking this analogy into the health field, if a hernia operation
failed the patient would claim on his own insurance and not have to prove
negligence - merely that his hernia is back again. He would have an
incentive to ensure that he did not cause a recurrence as this would put
his no claims bonus in jeopardy. The failure would be looked at in a true
"no blaim culture" and the patient would receive an apology (only) from
the doctor and hospital involved.
Competing interests:
None declared
Competing interests: No competing interests