A British Law Student’s Observations of American Medical Malpractice Law

by Vanessa Aarons

I will soon enter law practice in the United Kingdom as a solicitor. I spent the months of October and November, 2009 as a legal intern at the Perey Law Group in Seattle, Washington. I quickly became fully exposed to the reality of medical malpractice law in the United States. These are my observations of similarities and contrasts with the tort system in the United Kingdom.

Having just finished studying tort law in the United Kingdom, I came to America with certain reservations about the legal system here, specifically relating to the “culture of litigation” and sky-high damage settlements and awards for which the country is known. A key feature of tort law in the UK is the influence and importance of “policy” as one of the key ingredients in decisions made in the courts. This can be demonstrated clearly in cases such as Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, the famous British case where police let too many fans enter a small part of Hillsborough football stadium, resulting in many people being crushed to death. While this case centered on issues of psychiatric harm, the many people who were diagnosed as being psychiatrically injured but were not entitled to claim due to issues of policy, clearly highlights the court’s concern over opening “floodgates” to claims that would clog up the courts. It demonstrates the court’s desire, as a result, to implement artificial and sometimes arbitrary “control mechanisms” when considering access to the courts. I believe the Alcock decision looks at the American legal system when justifying this. It may be argued that this attitude, along with the importance of control mechanisms in the UK, is practically necessary as it allows companies and doctors to make decisions without fear of liability, and it prevents a multitude of claims flooding the courts. However, as the case of Alcock shows, this often leaves injured parties without a claim for damages.

The problems associated with an injured party not being able to claim damages would only be compounded in a country that lacks the necessary safety nets for injured parties. On Friday, November 6, 2009, Mr. Perey and I went to visit a new client and his wife in a local hospital. The client was severely ill with a particularly aggressive form of cancer diagnosed a month earlier. He had endured chemotherapy and radiation therapy. Now bound to a hospital bed, he and his wife were living with the reality that he did not have long to live. In fact, he died within a week of our visit. It appears that the client was the victim of considerable negligence by previous doctors, who failed to diagnose him accurately at a point that probably would have rendered his cancer treatable. There are issues both of whether this was a breach of the duty of care owed to the client by his doctors and whether this breach can be said to have caused his metastatic cancer and death. Further, the magnitude of damages to be claimed will have to be considered.

Caselaw is likely to determine these standards both in the US and in the UK. While I do not know the American caselaw, I do know that for policy reasons in the UK, doctors are often not found liable for breach of duty, as demonstrated in Whitehouse v. Jordan [1981] 1 All ER 267. Here, a baby was left brain-damaged after a doctor used forceps to assist the 2 delivery, when the mother had been in labor for 22 hours. The standard of care for medical negligence is whether a doctor reaches the standard of a responsible body of medical opinion. Bolam v. Friern Hospital Management Committee [1957] 1 WLR 583. In Bolam, McNaire, J., added that “putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” This offers doctors in the UK some leeway when questions arise as to whether their actions were negligent. As long as a reasonable number of other doctors would have acted as this doctor did, he or she has not breached his duty of care.

The next issue is one of causation. It is interesting to note the differing standards of causation in the UK and in the State of Washington. What is relevant in this client’s case is whether his doctors can be held liable for causing his death or only for decreasing his chance of survival. While it is not known whether the client would have survived had he been diagnosed and treated correctly, we would argue that at the very least, his percentage chance of survival was decreased through his doctors’ actions. The question then arises as to whether he can sue for loss of a chance of survival and how big a percentage loss is necessary to prove causation in this case.

In the UK, the case of Hotson v. East Berkshire Area Health Authority [1987] 2 All ER 909, establishes that causation can only be claimed in situations where the decedent’s chance of survival, upon correct diagnosis and treatment, would have been over 50%. If it is lower than this, then it can not be the case that on the balance of probabilities, the decedent would have survived “but for” the defendant’s negligence. The traditional “but for” test is not satisfied. Hotson was affirmed by a majority 3-2 in the later case of Gregg v. Scott [2005] UKHL 2, where a cancer patient’s survival rate was reduced by 17%, from 42% to 25%. It was held that causation was not established as the patient’s survival rate, even had he been diagnosed and treated correctly, was below 50%. It was Lord Nicholls, a dissenting judge, who stressed the inadequacy of British law in this area. In his opinion, he referred to the current English law as “crude to an extent bordering on arbitrariness.” Lord Nicholls pointed to law established in the State of Washington, where our client died, as the correct way to proceed. This case he cited as authority was the Washington Superior Court opinion of Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 664 P.2d 474 (1983).

Herskovits is the fundamental precedent for cases concerning a loss of a chance of survival in Washington. Herskovits established that the plaintiff does not have to prove the decedent “probably would have survived”, but only that the defendant’s negligence was a substantial factor contributing to his death. A 14% reduction in the decedent’s survival rate from 39% to 25% was considered to be sufficient evidence of causation to allow the jury to consider whether the lack of timely diagnosis was the cause of death.

So after a brief review of the case law in the US and the UK, we can see the difference between potential liability of a doctor in England and a doctor in Washington; for here is an example of a situation in which an English barrister may not be able to prove breach and causation while his American counterpart, a trial lawyer, will have an easier time of it. It is partly examples like this that are persuasive in differentiating the litigation culture 3 of the two systems. It is also interesting to note that, despite my reservations about the US litigation culture, judges such as Lord Nicholls and Lord Hope refer to the Herskovits case as the “way ahead.”

If our client’s case does then meet the criteria for breach and causation, the next issue is the injured party’s claims for damages. While it appears that in the US, the amount of damages claimed can be unlimited and can include substantial exemplary damages in most states (not including Washington), the UK has stricter guidelines as to how much money damages can be claimed and the courts are traditionally conscientious to avoid awarding too high of a sum. It is my opinion that the UK courts do this with an eye on the American legal system and the fear of our systems looking too similar.

However, what is taken for granted in the UK system are the social safety nets available for injured parties, both in terms of a national health system, and thus free healthcare to all of its citizens, and other advantages of the welfare state. This would include benefits for the disabled, unemployed and low-income families, and state pensions. Additionally, citizens do not have to worry as much about the expense of sending their children to receive higher education, for this too is largely provided by the state. The effect of this is considerably lower fees for those students who wish to go to university (increasing the opportunities available to them) in the UK, than for those in the US. Prior to his death, lying on this hospital bed, our client had the real concern that as the sole household breadwinner, his death would rob his children of a chance for a “better life.”

Our client was a man scared for his life, but scared also as to the financial consequence that his passing would have on his wife and his children. The cost of medical bills continuing to rise added to his and his wife’s worries. What was clear was the relief our client felt upon being told that he probably had a viable medical malpractice case against the doctors, who we believed were negligent. While the financial support given by the UK state would not compare to the damages one might receive in a medical malpractice case such as this, essentially the difference is that in the UK our client would not have to worry so much about his wife and children being taken care of, as the state would go a long way in providing for them.

While it is often the case that lawyers are not the most welcome of guests in a hospital room, our client and his wife were visibly happy to see us. Medical malpractice lawyers don’t cure injuries, but I could see that what they can do is provide a service that in some practical and humane ways helps to mitigate both the harshness and unfair nature of the injuries a medical malpractice victim suffers. Through meeting our client and his wife and experiencing the layers of fear and concern that surrounded their case, I became convinced that a country’s legal system is intimately tied to wider social structures. It is perhaps a strong argument that within the American system, claims for medical malpractice need to be made more often and damages need to be higher then in the UK, in order to take into account the differences in the systems between these two countries. But does it then follow that because countries such as the UK have these social safety nets, fewer actionable claims and reduced damages are acceptable?

To my mind, the importance of balancing the interests and needs of dependents against the practical problems that come with too much litigation such as constant fear of liability and flooded courts should not be entirely forgotten and downplayed. But I do appreciate now that a “one size fits all” approach to this balance does not make sense and that the balance struck must be considered in the unique context of each legal and social culture.

VANESSA AARONS received a Bachelor of Science degree from the London School of Economics (LSE) in Social Anthropology. She has recently passed with distinction her Graduate Diploma in Law (GDL) at Nottingham Law School. Sponsored by the British firm Herbert Smith, Vanessa will study for a further year, before training to become a practicing solicitor at this firm. Vanessa, a dual British and American citizen, has a keen interest in cultural differences which she has explored in her undergraduate degree and through extensive traveling in Asia and the USA.