Over the past decade, doctors have becoming increasingly vulnerable to lawsuits being brought against them by their patients. It appears that some patients are actively seeking reasons to sue their medical practitioners to generate some spare cash. In its 2012 annual report, the NHS Litigation Authority (NHSLA) reported that 9,143 clinical claims were raised against NHS Trusts during 2011-12, together with 4,618 non-clinical claims. Of the 14,171 claims closed by the NHSLA in 2011-12, 37% were resolved without payment of damages to the claimant. Clearly, a high number of claims are reaching court that could have been settled without a lawsuit being raised.
There are several reasons why patients may suddenly initiate court action, despite the medical staff performing their jobs efficiently and effectively. One of the main causes of spurious claims is the unrealistic expectations of the patient. Unrealistic expectations can persist even when a doctor or surgeon has clearly laid out the risks and possible pitfalls of treatment. Some patients only hear the parts of the preoperative information that they want to hear. A good example of this is a case that was brought against a specialist orthopaedic surgeon in 2003. The surgeon had successfully repaired damage to the patient’s clavicle. However, prior to the operation, he had stressed the possibility that the surgery could lead to scarring and may not be 100% successful. Five years after the initial surgery, the patient raised a claim against the surgeon. While the outcome of the operation fell within the possible options he had outlined, the patient had become unhappy with the results. However, a psychiatric report linked the patient’s unhappiness due to other life events, rather than the outcome of the surgery. The claim was defended and ultimately dropped by the claimant.
Patients occasionally raise claims against their doctors simply because the treatment they have experienced was uncomfortable or unpleasant. In a case that was successfully defended by MPS, the world’s leading mutual medical defence organisation, the family of a toddler sued because she was subjected to an examination that involved torchlight being shone in to her eye. They also alleged that the ophthalmologist had failed to operate quickly enough, with the operation delayed for 22 hours until a course of antibiotics could be administered. Expert opinion supported the course of treatment administered and stated that the sight in the child’s eye had been saved by the ophthalmologist’s actions. The claimants failed to attend at court and the case was dismissed.
Of course, some claims arise because something has gone wrong with a medical procedure. However, simply because a patient experiences complications, it does not automatically follow that the doctor was negligent, no matter how serious the consequences. Following an operation to address his severe back pain, a patient experienced complications, including internal bleeding, septicaemia and multiple organ failure. He subsequently died and the family raised a claim against the surgeon. However, the court found in favour of the surgeon because his technique was exemplary and there was no evidence of negligence.
Although modern medicine has reduced the risk of treatment and surgery, they are not risk-free. However, doctors must be up-front and honest with patients to ensure the risks of a particular treatment are fully understood if they want to avoid unnecessary claims.
Guest post contributed by Sandy Atwood, on behalf of Lawyers.com. Sandy studies education law and in her spare time, she takes an interest in and writes about the various lawsuits.