The Misplace of Litigation in Medical Practice
Authors: AC Carl Wood 
Published: February 2008

EDITORIAL COMMENT: This paper should interest all readers. In the opinion of the editor it is profound. It concerns litigation for medical negligence. The author is one of our most senior medical colleagues with an unrivalled reputation for originality in his wideranging contributions to clinical research, his insight into the human condition, and ability to express his ideas clearly and without fear. The main message seems to be to reaffirm that ‘to err is human’ (A), and that physicians who have made an error of judgment in clinical practice should have similar protection from negligence claims that is apparently enjoyed by barristers.

(A) Pope A. An Essay on Criticism. 1711; 1: 525.

Summary: Medical decision‐making is based upon mathematical probability in determining the significance of variables involved. Truth is often not absolute and medical decisions often require reconsideration of information, reanalysis and possible change.

Litigation based upon error negates the ordinary practice of medicine. Error is intrinsic to all human behaviour and contributed to by uncertainty concerning precision in diagnosis and treatment of some diseases, mood change affecting ability to process cognitive and analytic function, and adverse work environment. Error is an important process in learning and providing it is recognized and fully admitted is a creative process providing opportunity for improving medical practice.

Litigation is based on proof of negligence. Negligence is defined as carelessness, which is a rare cause of human and medical errors. The law confuses error with negligence; error should not be the basis for litigation. Litigation based on error is counter‐productive to the best practice and improvement of clinical medicine.

The assessment of errors and negligence is limited by the method of choice of medical experts, the adversarial system often ignoring the intermediate position in favour of a yes‐no answer, the selection of experts to favour the desired result rather than the real situation, the method of questioning of witnesses which discourages explanation and creative solution of disagreement, and the hierarchial system which does not allow exploration of the issues and creative solutions.

The basis for financial compensation for ill health is relevant when this assists the sufferer to cope with the ill health. The ethical basis for compensation when ill health results from error by health care workers is not more valid than ill health resulting from biological or environmental factors. Human error is common normal behaviour, while biological and environmental causes of ill health are common errors of human biology and the environment. Unintentional human error should not be the basis of financial remuneration or punishment. This latter principle has been applied to all services between the customer and service supplier, which may lead to unnecessary mistrust, anxiety and alienation in modern society.

Incapacity from injury or disablement is covered by damages payment in only a small percentage of permanent disability cases (1.5% in the U.K.). Universal insurance by government or private agencies e.g. as in motor accident insurance to include the 98% of the permanently disabled who are receiving no payment at present would be both preferable and fairer.

The protection of barristers from litigation for negligence in court is based upon arguments that could apply to most other occupations, and are equally, if not more relevant to medicine.

The legal system of settling claims for negligence by doctors needs to be replaced by an investigative system which seeks to explain the basis and cause of error, which would benefit the patient and the doctor, and improve medical practice. A creative process needs to replace a judgmental, rigid and punitive system. A committee involving specialist groups in selecting expert witnesses, a health counsellor and a patient representative may be most suitable.

Criminal acts, where error is performed deliberately, assault or sexual misdemeanors, would still be subject to the common law.