The new edition of this well known work is timely. Medical negligence law and practice has changed more in the past twenty years than the previous 200. And much of that development, if not actually effected, has been considered by the courts in the eight years since the third edition. Sadly, the founder Editor Nigel Harris died before publication.
Shortly before the first edition appeared this reviewer had left the more lucrative, but less fascinating, business of commercial legal publishing to establish Medical Law Reports. At that time – 1988 - the field was polarised: lawyers, expert witnesses acted either for plaintiffs or defence, Few, if any, crossed the divide. Rumours were whispered – although not, as far as one could discover, substantiated – of judges who never found in favour of patients.
Under the reforming zeal of Lord Woolf and others a better balance has been achieved. In a recent limitation case, when confronted by defence counsel with a traditionally trenchant dictum by Lord Denning likening prejudice caused to a defendant doctor to the “prejudice to Damocles when the sword was suspended over his head at the banquet”, Mrs Justice Laura Cox said:
“So expressed these observations seem to me to belong to a different era, when professional negligence claims brought against doctors were rare, and they no longer fit happily with recognition of such litigation as one of the features of modern professional life.” Leeson v Marsden MLC 1536
This new edition’s topicality is illustrated by nine new chapters on the legal aspects. These include -
CHAPTER 4: Compensation schemes - the buzz words for medneg people these days. Will they be the end of litigation as we know it? If the NHS Litigation Authority has its way the answer would be a decisive YES! Litigants in person - at least, those with enough savvy to compile a good claim - would be welcomed with open chequebooks, so long as they accepted Mr Walker-approved solicitors to vet any offers. The author of this Chapter, Dr Anthony Barton, provides a master lesson in concise consideration of likely and unlikely schemes for compensation for medical accidents viz:
(1) the NHS Redress Act 2006; and
(2) various proposals for no-fault compensation.
As to the first, the writer is scathing:
“4.14 The NHSRA 2006 is fundamentally misconceived. Treatment is a matter of patient entitlement, not legal remedy. Out of court settlement should and does happen anyway. The Act’s focus on blame and compensation does not reflect patient priorities.”
And as to the second, no less so:
“4.40 No-fault compensation schemes envisage the payment of compensation to the victim of a medical accident without proof of fault from a central fund. Such schemes enjoy some support based on an incomplete understanding of medical litigation: it is important to distinguish between the basis of compensation and the process of compensation. They are unlikely ever to be put into operation for economic, legal, and policy reasons....”
CHAPTER 8: Clinical negligence and Human Rights: Provides the benefit of some thoughts from one of the Bar’s best known practitioners in this ever-expanding field as Philip Havers is a joint author.
CHAPTER 20: Investing damages awards; Lump sums, periodical payments and state benefits: An important practical chapter, particularly the authors’ analysis of the Court of Appeal’s decision in Tameside & Glossop Acute Services NHS Trust v Thompstone MLC 1503 which considered the power of the court to order Periodical Payment Orders (PPOs) without the consent of parties and the correct approach to the exercise of that power. The criteria for suitability of an index was also considered.
CHAPTER 21: Mediation and ADR: While appreciating that this form of dispute resolution may appear attractive in certain circumstances, this reviewer must declare that he is not a supporter of the process. It is expensive, and what more can it achieve than a round table conference? Most importantly, it is not binding – as the decision by Costs Judge Hurst in the TAG mediation case illustrates: Richards v Davis MLC 1544. Nevertheless, the author gives a useful summary of the pros, cons and mechanics which solicitors will find useful given the court’s new case management powers.
New areas of clinical practice include chapters on Paediatric surgery, Breast surgery, Surgical Care Practitioners, Hospital Acquired Infections and Infectious diseases in children.
A complete and careful reading of the book, cover to cover, would repay the time spent a hundredfold but for the purposes of this review it is sufficient to consider a few of the revised chapters, such as:
CHAPTER 1 - The law: Margaret Bickford-Smith QC and Peter Houghton: Confusingly, this states:
1.60 The Bolam test is a rule of practice or of evidence. It is not a rule of law: doctors do not determine their own legal liability.
But how does this sit with Lord Diplock’s observation in Sidaway v Bethlem Royal Hospital Governors:
“No convincing reason has in my view been advanced before your Lordships that would justify treating the Bolam test as doing anything less than laying down a principle of English law that is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions with respect to that patient.”
The 4th sentence of paragraph 1.119 (citing Anderson v Milton Keynes General NHS Trust and Oxford Radcliffe Hospital NHS Trust) is incomprehensible – the beginning of a regular number of typos throughout the book.
The law is stated to be that extant at April 14 2008 yet the important causation case of Corr v IBC Vehicles Ltd was in fact handed down by the House of Lords in February 2008.
CHAPTER 2 - Clinical governance: Anyone who has experienced the A&E department of a hospital on a Friday or Saturday night may agree, but for different reasons, with Professor Aidan Halligan’s interesting assertion at the outset that patients have changed more than the health service upon which they depend. The last 50 years, writes the eminent author, have seen the rise of a new breed of individual, yet healthcare organisations continue to operate according to a logic invented at the time of their origin, nearly a century ago. Ultimately, the professor makes a plea for leadership, rather than management: “It is only leadership and clinical engagement that redefines the possible”. Hear,hear. But does such leadership develop by throwing more and more cash into the problem? One realises, perhaps, that it was appropriate to have the foreword written by a politician, John Baron MP, who may soon hold the purse strings for our unique, persecuted, yet much loved monolithic NHS – which has kept this reviewer around for his allotted three score years and ten.
Chapter 5, Agencies, by that caring solicitor Tim Goldburn, of Preston Goldburn, is an important presentation looked at from the point of view of a patient.
Chapter 6: Poor performance and medical professional governance: Should be considered by all those elusive patients who “Don’t want any compensation - just to make sure it can never happen to anyone else”. As if.
Chapter 10: Proposed new coroners’ legislation will be more relevant when the Government finally gets round to producing the promised reforms.
Chapters 27 to 51 inclusive are by medical experts most of whom will be well-known to practitioners as leaders in their specialities. Many appear for claimant and defence which will please any judge before whom they appear. Here’s some typical comments by judges on a few contributors to this book taken from our Confidential Index of Medical Experts:
· evidence accepted and found "more convincing"; "clear, helpful and convincing";
· "I have no hesitation in preferring the evidence of … Professor A";
· "an exceptionally impressive witness, demonstrably impartial, ready to concede matters which might suggest a contrary view, and particularly conscious of the need to avoid hindsight".
The format adopted for most of these presentations is to state the method and objectives of the speciality, and highlight the aspects most likely to give rise to claims together with a checklist which will be of value to clinicians – and, of course, claimants’ lawyers.
There are 70 contributors to this edition which, inevitably, gives rise to some duplication between authors eg on developments such as the Human Rights Act, complaints and procedure, but – thanks to the Editors? - this is kept to a minimum.
Having served his early editing and publishing days with linotype machines, compositors, galley proofs and flat bed printing, and then struggled with online publishing your reviewer was shocked on first sight of an obese tome weighing 4½ lbs and 3½ wide. One is not aware whether the publishers have paid any attention to his eco-suggestion, in reviewing an earlier edition, that consideration is given to publishing on-line. But, bravely, the book does also come on CD Rom in a pocket on the inside front cover.
This puts an entirely different perspective on the work’s practical benefit – and its price.
Firstly, the CD Rom gives a far better word search than the orthodox index. For example having recently spent some time in Stoke Mandeville with the condition I wanted to see if there was anything on cellulitis – not according to the book’s index but a word search using the CD Rom came up with something.
Secondly, and more importantly: all law books are out of date on the day they are published. The reader now can update the book by “editing” the CD Rom with details of later cases as they are decided. In fact, that, in this reviewer’s opinion, would be an essential task if you wish to fulfil the claim made in the publishers’ brochure of “key reasons why you need this book”:
· “Be confident in the knowledge that you are giving the most up-to-date, authoritative advice”.
In fact, wouldn’t it be a good idea if the publishers were to offer a networking deal to universities, NHS, and larger subscribers ...
Since there appears to be a disinclination by most of the legal contributors not to cite cases which are reported online in our Medical Litigation Cases here are a few to start your personal “pending Fifth Edition”:
Leeson v Marsden MLC 1536 believed to be the first application of Horton v Sadler claimant’s new solicitors issuing second claim against defendants - Whether court should exercise discretion under Limitation Act 1980 to disapply limitation period - Whether second action an abuse of process. Whether a claimant should be permitted to continue with her clinical negligence claim against NHS defendants should be determined under section 33 and not as a separate question relating to abuse of process. The claimant had discharged the burden upon her of establishing that it would be equitable to disapply the limitation period and to allow the claim to proceed.
Khairule v North West Strategic Health Authority MLC 1546, where the claimant, aged 27, had suffered from athetoid cerebral palsy since his birth in 1981, Mrs Justice Cox DBE considered, it is believed for the first time, the impact of the internet on constructive knowledge of attributability.Her Ladyship went on to rule that it would be equitable to disapply the limitation period under LA 1980 sect 33 and allow the claim to proceed.
Whitehead v Hibbert Pownall & Newtown MLC 1525, a wrongful birth claim, the Court of Appeal provided guidance in professional negligence cases against legal representatives based on delay in conduct of litigation and whether a duty of care might arise at least to advise a father that he might have a personal claim against the defendant health authority.
Peters v East Midlands Strategic Health Authority MLC 1535 where Butterfield J ruled that the costs of future care of a clinical negligence claimant with a mental age of around 3 and a life expectation to age 68.5 should be privately funded from her damages so that the negligent party should pay those costs not the local authority. The local authority was not entitled to recover its past outlay.
This judiciously pruned, yet thoughtfully enhanced, Clinical Negligence, in its hardback and electronic format, reaffirms the title’s position as the authoritative guide in a particularly challenging area of the law. Whether lawyer or clinician, for claimant or defence, CFA wizard or legal aid lollard, cherry picker or campaigner, diplomat or bruiser, if you regard yourself as any sort of a player in this field there will be times when, without this work, quite frankly, you may not be doing your best for your client.
GMH
15th August 2008
www.medneg.com
It is always a little unnerving to those of us who are creatures of habit that a work which has established itself with one name, suddenly calls itself something different. Powers and Harris has long been regarded as one of the essential works for the clinical negligence practitioner. Sadly Nigel Harris died during the preparation of the latest edition of this work, which undoubtedly explains the change in the list of editors
Whatever the name ascribed to it, this work has acquired a formidable reputation in the 18 years since its first edition was published.
At 1,894 pages, it is the longest edition of the book yet. It also has seven more chapters than its previous edition. As with the previous edition, it is more about medicine than law (which is probably true of clinical negligence cases generally: the law is reasonably well settled in many areas, but the capacity for things to go wrong in clinical treatment is infinite).
There are 50 new contributors to this edition, many of them well known in the field of clinical negligence.
Some chapters from the previous edition have been omitted (group actions, pecuniary compensation and the position in Scotland) but new chapters have been included – on compensation schemes, poor performance and medical professional governance, funding claims, investing damages awards, and mediation, along with a number of new chapters on medical issues.
New to this edition is a CD containing the entire text of the work. It is fully searchable (useful for those ‘needle in a haystack’ situations where you are trying to get a handle on a particular problem and are not sure where to begin).
This is not a beginners’ guide to clinical negligence. It has plenty of guidance on how to deal with every aspect of clinical cases, but you will find few standard letters for the beginner to write. That said, there are excellent chapters that cover the various stages of running the cases and there is a particularly helpful chapter on preparation of medical evidence which covers all aspects of dealing with experts along with considerable help in making the most of the evidence from medical records.
This is a work that is written from both sides of the fence: it is equally useful to claimant and defendant practitioners. It is expensive, but if you consider that it represents perhaps only two hours’ worth of solicitors’ fees, then its cost can be recouped easily by saving that much time in fruitless searching on the internet. On that basis it still represents good value for money and should be on the shelf of every self-respecting practitioner in this field.
Richard Barr is a partner in Fraser Dawbarns Solicitors, King’s Lynn
Solicitors’ Journal, 11 November 2008
This comprehensive book looking at the ever changing subject of Clinical Negligence is an essential guide for anyone involved this [sic] field. The book is edited by Dr Michael Powers QC, a medical practitioner and Master of the Bench of Lincoln’s Inn; Dr Anthony Barton, Solicitor and Medical Practitioner; and the late Mr Nigel Harris, Consultant Orthopaedic Surgeon. It is contributed to by 76 eminent legal and medical experts making this an unparalleled resource. Each chapter provides an authoritative and unique insight into the subject matter discussed, and the topics range from the basics of negligence claims, through to risk management, the regulation of the medical profession and the issues of clinical medicine. Although aimed at those with an interest in the field, it is well written and caters for individuals with a limited knowledge of the subject.
The new addition [sic] has made way for 15 new chapters, evenly divided with 25 legal and 31 medical chapters. The textbook provides an overview of the law and on the risks associated with a vast array of clinical specialities. The table of statutes and cases at the beginning provide a useful quick reference guide, and the text is comprehensively and well referenced throughout. Each chapter opens with an introduction followed by easy to read smaller sections, which creates for simple reference and allows the reader to dip in and out of the text. Catering for the IT age, the book is accompanied by a CD-ROM containing the main text and therefore allows for reference anywhere.
What makes this book so different is the incredible overview and range of topics covered. Often texts focus on the theoretical law, but Clinical Negligence gives a step by step guide of how to put theory into practice. Taking account of recent statute and case law, it is an essential tool to anyone working in this field. There is in depth discussion about the laws governing medical practice which has been updated since the last edition and a stimulating chapter on the impact of the Human Rights Act 1998 by Philip Havers QC and Rachel Marcus. Unfortunately, as with any text is it impossible to be up to date in an ever changing world, with notable absences of reference to the Corporate Manslaughter Act 2007 and the soon to be implemented Mental Health Act 2007.
Such a text would not be complete without an in-depth look at the civil procedures in relation to medical negligence claims. These chapters provide an essential guide to legal advisers, and they help to explain the theory behind the practices. For doctors who find themselves subject of a claim, may find this a useful reference book to understand what happens behind the scenes and could assist in realising that such action is usually not intended to be a personal attack of their reputation or skill. Through these chapters there is also helpful information on the roles and responsibilities for those undertaking expert witness work and it takes the opportunity to look at notable cases such as that of Meadows.
Unfortunately, clinicians do occasionally find themselves under scrutiny during criminal investigations associated with incidents related to clinical practice, and this topic is not covered. There is however, a detailed chapter in relation to Coroner’s inquests, explaining the process and procedures involved. With an emphasis on case law which has shaped the conduct of such inquiry, this proves to be an essential guide to anyone involved.
Clinicians too will find this text useful and interesting, as the second part of the book looks at individual specialties. Of note, and unusual in such texts is a unique look at the medical defence organisations and is written by Dr Priya Singh, Medical Director of MPS. Practitioners may find this overview of great value in understanding how the organisations of which most are members throughout their careers function, and endeavour to protect their professional interests. Medical regulation too, is a topic of general interest gaining increasing exposure in the medical press and this book tackles organisations involved in professional governance; the GMC, and NCAS warranting a chapter contributed to by Sir Liam Donaldson and Professor Alastair Scotland. Further, there is an emphasis on risk management and clinical governance which is often lacking in other law texts.
However, this text book does not and indeed should not deal with ethical issues in totality. The consent chapter does open with a brief look at the issues which are raised, but this text aims to give absolute answers and addition of convoluted ethical arguments would confuse the purpose, and make the book simply too long. There are other texts which deal with these separately.
As a reference textbook, although expensive, it is unparalleled. This is a well written, exhaustive text on clinical negligence and is recommended for anyone working in the field of medical law. Clinicians too will be impressed by this easy to read thorough guide and contributions by distinguished peers.
Dr Pallavi Bradshaw
Faculty of Forensic and Legal Medicine
September 2008
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