¹ Hospital Complaints Procedure Act 30-Revised 49/2 (1985).

² DHSS Health Circular HC(81)5. The statutory procedure differs little from the complaints procedure introduced in 1981 as DHSS Health Circular HC(81)5 by the Department of Health and Social Security. In symbolic terms, however, the importance of the mechanism has been enhanced, since it now has the force of statute rather than mere regulation.

³ Hospital Complaints Procedure Act 1985 Ch. 421.

⁴ HANSARD, 22 Feb. 1985, p. 1377.

⁵ Annual Report of Action for the Victims of Medical Accidents, 1983-84, p. 7. See also Simanowitz, , Standards, Attitudes and Accountability in the Medical Profession, 2 LANCET 546 (1985).CrossRefGoogle Scholar The experience of the Regional Medical Officers, to whom patient complaints about clinical care in National Health Service Hospitals are made, confirms the fact that many plaintiffs are not “motivated to seek financial redress. Quite commonly the complainant appears more concerned to ensure that other patients are not subjected to a similar experience.” Scott, , Complaints Arising from the Exercise of Clinical Judgment, 17 HEALTH TRENDS 70 (1985).Google Scholar

⁶ 1979 Royal Commission on the National Health Service 11 11.29 (1979).

⁷ The Medical Defence Union, which “insures” approximately 70% of British physicians, claims that, “Exact statistics are not possible, as legal cases may continue for many years before being settled.” 1 J. OF THE MED. DEFENCE UNION NO. 3, 12-13 (1985). The Union has recently published a table of 2086 “cases” considered by its Council and Committees in 1985, 1791 of which involved negligence. 2 J. OF THE MED. DEFENCE UNION NO. 2, 5 (1986). These cases consist of requests for assistance by Union members from all over the world, as well as claims actually filed against members. Moreover, cases which are considered at more than one level are tabulated each time they are considered. As a result, the statistics are of little use in calculating the actual volume of malpractice litigation in Great Britain.

⁸ Annual Report of Action for the Victims of Medical Accidents, 1983-84, 3.

⁹ Professional Liability in the ‘80's, Report I, p. 10. American Medical Association Special Task Force on Professional Liability and Insurance, October, 1984. The AMA does not define its use of the term “claims,” although it is doubtful that it refers only to actual lawsuits filed. Clearly, the term “writ” can only describe lawsuits actually filed. Unfortunately, the British defence societies do not divulge how many “claims” for compensation are made against its insureds. See supra note 7.

¹⁰ Things may, however, be changing in Great Britain. Between April 1,1984 and April 1, 1985, 3,135 legal aid certificates were issued for potential malpractice proceedings in England and Wales. Telephone conversation with Mr. Gordon Marsh, Deputy Health Service Commissioner, January 8, 1986. A legal aid certificate permits clients to seek publicly-funded advice from the legal profession, but does not necessarily mean that a claim will be filed. See text accompanying footnotes 22-31. Over a three-year period beginning in October of 1982, Action for Victims of Medical Accidents referred 702 of its 3,520 inquiries to solicitors. Annual Report of Action for the Victims of Medical Accidents, 1984-85, 7. On medical malpractice litigation in the U.S. as a healthy sign of the democratic process, see LIEBERMAN, THE LITIGIOUS SOCIETY 66-94 (1981).

¹¹ On the deterrence function generally, see Schwartz, and Komesar, , Doctors, Damages and Deterrence, 298 N. ENG. J. MED 1282 (1978).CrossRefGoogle Scholar For a somewhat dated study concluding that there is not enough data to evaluate the impact of the U.S. malpractice system on the quality of medical care, see Brook, Bructoco and Williams, The Relationship Between Medical Malpractice and Quality of Care, 1975 DUKE L.J. 1197. For a British study of similar vintage, see The Influence of Litigation on Medical Practice, Proceedings of a conference sponsored jointly by the Royal Society of Medicine and the Royal Society of Medicine Foundation, Inc., May 16-17, 1977. Cf. Bell, , Legislative Intrusions into the Common Law of Medical Malpractice: Thoughts About the Deterrent Effect of Tort Liability, 35 SYRACUSE L. REV. 939 (1984)Google Scholar (concluding that the widespread existence of malpractice insurance eviscerates the deterrent effect); and Robertson, , Informed Consent in Canada: An Empirical Study, 22 OSGOODE HALL LJ. 139 (1984)Google Scholar (concluding that even among those Canadian physicians aware of a Canadian Supreme Court decision adopting the “reasonable patient” standard of disclosure in informed consent cases, most doctors adopted a paternalistic stance and told their patients only what they themselves thought patients ought to know).

¹² For an entertaining discussion of the way civil litigation is conducted in England, see Megarry, , Litigation in England Today: Beneath the Surface, 62 WASH. U.L.Q. 205 (1983).Google Scholar See also Grubb, , A Survey of Medical Malpractice Law in England: Crisis? What Crisis?, 1 J. OF CONTEMP. HEALTH LAW AND POLICY 75 (1985).Google Scholar

¹³ Criminal Law Act, 1967, ch. 58.

¹⁴ See, e.g., Leigh, The Injustice of Winning, 2 J. OF THE MED. DEFENCE UNION NO. 2, 19-20.

¹⁵ Lord Scarman is one of the 15 Law Lords who usually sit in panels of five as the final court of appeal in English jurisprudence. See generally, A. Petterson, THE LAW LORDS (1982).

¹⁶ Sidaway v. Bethlem Royal Hospital Governors [1985], 1 All. E.R. 643, 653.

¹⁷ See infra notes 22-31 and accompanying text.

¹⁸ For an historical discussion of the litigation expenses imposed on losing parties, see Goodhart, , Costs, 38 YALE L.J. 849 (1929).CrossRefGoogle Scholar

¹⁹ In Professor Gower's words, “[I]t has always been the case [under the British common law] that the individual litigant is made to pay for the clarification of the law for the benefit of the general public.” Gower, , The Costs of Litigation, 17 MOD. L. REV. 13 (1954).CrossRefGoogle Scholar See generally Manse, , Winner Takes All: A Re-Examination of the Indemnity System, 55 IOWA L. REV. 26, 33 (1969).Google Scholar See also Greenberger, , The Cost of Justice: An American Problem, An English Solution, 9 VILL. L. REV. 400 (1964)Google Scholar; and Leubsdorf, , Toward a History of the American Rule on Attorney Fee Recovery, 47 LAW & CONTEMP. PROBS. 9, 12 (1984).CrossRefGoogle Scholar Compelling a losing party to pay the prevailing parties’ litigation expenses is a matter of discretion, and may not be ordered if it would work an undue hardship on the losing party. For example, if a legal aid client loses, it is possible that he will not be burdened with the other parties’ costs.

²⁰ Of the 5 percent of all medical malpractice claims which actually went through to judgment in 1974-75, four out of five resulted in verdicts for the defendant-physicians. 1 J. of the Med. Defence Union 12-13 (1985).

²¹ See generally J. Cooper, Public Legal Services, Sweet & Maxwell (1982). For a critical view of the impact of legal aid on medical malpractice litigation, see Jando and Harland, Legally Aided Blackmail, NEW L.J.402 (April 27, 1984). Cf. Haihham, Legal Aid, 22 MED. SCI. LAW NO. 3, 169 (1982)Google Scholar, for more favorable views of the Lord Chancellor with respect to civil litigation.

²² Legal Aid Act 1974, ch. 4, § 2(4)(a).

²³ Legal Aid Act 1974, § 1(1) Legal Advice and Assistance (Financial Conditions) Reg. 1985, § I 1985 No. 1614.

²⁴ Legal Aid Act 1974, § 4(1) Legal Advice and Assistance (Financial Conditions) Reg. 1985, § I 1985 No. 1694.

²⁵ Legal Aid Act 1974, § 1(1) Legal Advice and Assistance (Financial Conditions) Reg. 1985, § I 1985 No. 1614.

²⁶ Id. at § 5.

²⁷ Id.

²⁸ W. at § 7.

²⁹ Id. at § 15. The Law Society is a professional body made up of solicitors, directly responsible for ensuring that legal aid is available to those who meet the criteria.

³⁰ Legal Aid Act 1974, § 6, I; The Legal Aid (Financial Conditions) Reg. 1985, § I 1985, No. 1615.

³¹ Legal Aid Act 1974, at § 9 (I)-(2).

³² Govt. State Services, 1986, London (British Information Service, U.S. Tel. #: 800-223- 5339 gives the reference and will provide no primary source site).

³³ See Shavell, , Suit, Settlement and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs, 11 J. OF LEGAL STUDIES 55 (1982).CrossRefGoogle Scholar

³⁴ Samuels, , Medical Negligence Today-An Appraisal, 23 Med. Sci. L. 31, 32 (1983).CrossRefGoogle Scholar It has been estimated that only 4 percent of cases alleging medical negligence end up in court. Taylor, Medical Negligence, in MEDICAL MALPRACTICE 31 (J. Taylor ed. 1980). In the United States over 90 percent of medical malpractice cases are settled out of court. P. DANZON, MEDICAL MALPRACTICE: THEORY, EVIDENCE AND PUBLIC POLICY 31 (1985).

³⁵ Samuels, supra note 34, at 33.

³⁶ See infra text accompanying notes 123-127.

³⁷ But see Bell v. Secretary of State for Defence, [1986] 1 Q.B. 332, [1986] 2 W.L.R. 248, [1985] 3 All. E.R. 661 (C.A. 1985), where the Crown Proceedings Act 1947, § 10(l)(b), dealing with crown immunity, was given a liberal interpretation so as to permit a medical malpractice action against an army physician. The physician allegedly failed to provide appropriate information to a German civilian hospital where an injured soldier was sent for treatment.

³⁸ Cf. supra note 20.

³⁹ Sidaway, [1985] 1 A.C. 871, [1985] 2 W.L.R. 480, [1985] 1 All. E.R. 643 (H.L.).

⁴⁰ See generally Robertson, , Informed Consent to Medical Treatment, 97 L.Q. REV. 102 (1982).Google Scholar

⁴¹ House of Lords decisions usually do not take the form of a majority opinion, but the individual judges’ views are published in descending order of seniority of those hearing the particular case. Although a formal vote is rarely taken, the disposition of the case becomes apparent through reading the separate opinions. See generally A. PETTERSON, THE LAW LORDS (1982).

⁴² Sidaway, [1985] 1 All. E.R. 643, 659, 661 & 665. The Court of Appeal recently used the rationale of Sidaway to suggest changes in discovery rules applicable to medical malpractice litigation. In Lee v. South West Thames Regional Health Authority, [1985] 1 W.L.R. 845, [1985] 2 All. E.R. 385 (C.A.) discussed in 1 LANCET 1052 (Apr. 25, 1985), the Master of the Rolls reasoned that since under Sidaway a doctor has a duty to answer questions about.proposed treatment, the situation should not be different where the treatments have already been given and the patient seeks to discover precisely what happened. At issue was an ambulance crew report in the defendant's possession, protected from discovery by Rules of the Supreme Court, because it was prepared for litigation. Lord Donaldson was clearly unhappy with the result and took the unusual step of signalling Parliament that a remedy was in order.

⁴³ Sidaway, 1 All. E.R. at 658-60 and 662-63.

⁴⁴ Adams, & Zucherman, , Variation in the Growth and Incidence of Medical Malpractice Claims, 9 J. HEALTH POLITICS, POLICY & LAW 475 (1985).CrossRefGoogle Scholar

⁴⁵ [1957] 2 All. E.R. 118 (Q.B.).

⁴⁶ Id. at 121.

⁴⁷ Maynard v. West Midlands Regional Health Authority, [1984] 1 W.L.R. 634, [1985] 1 All. E.R. 635, 638 (H.L. 1983).

⁴⁸ [1955] Sess. Cas. 200. See Walker, , Case Note on Hunter v. Hanley, 67 JURID. REV. 220 (1955).Google Scholar See also Howie, , The Standard of Care in Medical Negligence, 28 JURID. REV. 193, 199–200 (1982).Google Scholar

⁴⁹ [1957] 1 W.L.R. at, 2 All. E.R. at 122.

⁵⁰ The historic reluctance of physicians to provide expert testimony against other doctors has not abated in modern England, notwithstanding an increased uneasiness about the issue. See Marcovitch, Are the Dice Really Loaded?, 1 J. OF MED. DEFENCE UNION 14 (Summer 1985).

⁵¹ A. LINDEN, CANADIAN TORT LAW 141-42 (3d ed. 1982).

⁵² See Miller, , Informed Consent for the Man on the Clapham Omnibus: An English Cure for the “American Disease?” 8 W. NEW ENG. L. REV. 301 (1986).Google Scholar

⁵³ Montrose, , Is Negligence an Ethical or a Sociological Concept? 21 MED. L. REV. 259 (1958).Google Scholar

⁵⁴ For an analysis suggesting that notwithstanding the thrust of Bolam, Whitehouse and other cases, customary practice might still be tested by the reasonableness standard, see infra note 181.

⁵⁵ [1985] 1 All. E.R. at 635.

⁵⁶ [1981] 1 W.L.R. 246, [1981] 1 All. E.R. 267.

⁵⁷ Samuels, Medical Negligence Today—An Appraisal, 23 MED. SCI. L. 31, 32 (1983). But see Cassidy v. Ministry of Health, [1951] 2 K.B. 343, [1951] 1 All. E.R. 574, 1951 W.N. 147 (C.A.). See generally Atiyah, , Res Ipsa Loquitur in England and Australia, 35 MOD. L. REV. 337 (1972).Google Scholar

⁵⁸ Lord Denning was an Appellate Judge for thirty five years. Promoted to the court of Appeal in 1948, he reached the House of Lords in 1957. In 1962, he became Master of the Rolls. For a discussion of Lord Denning's life and opinions, J « J. JOWELL ' J. MCAUSLAN, LORD DENNINC: THE JUDGE AND THE LAW (1984).

⁵⁹ Hucks v. Cole, Court of Appeal Transcript No. 1968/181, at p. 6, quoted in 44 MOD. L. REV. 457, 458 (1981).

⁶⁰ Ashcroft v. Mersey Regional Health Authority, [1983] 2 All. E.R. 245 (Q.B.) (pleading on res ipsa reported in 1 LANCET 1227 (May 25, 1985)), aff'd, [1985] 2 All. E.R. 96.

⁶¹ Saunders v. Leeds Area Health Authority and Robinson, [1985] 1 C.L. 254(a)(1984), reported in 1 LANCET 449 (Feb. 23, 1985).

⁶² See TAYLOR's PRINCIPLES AND PRACTICE OF MEDICAL JURISPRUDENCE 46 (A. Mant ed. 1984) (“The British Courts are … somewhat reluctant to apply the doctrine of res ipsa loquitur in … medical cases.“). See also Epstein, Medical Malpractice: Its Cause and Cure in THE ECONOMICS OF MEDICAL MALPRACTICE 249 (S. Rottenberg ed. 1978).

⁶³ 1959 Mental Health Act, 7 Eliz. 2, § 141, replaced by Mental Health (Amendment) Act 1982.

⁶⁴ Mental Health Act, 1983, § 139(2). See Brahams, , When Can a Patient Sue for Negligence and Wrongful Detention under the Mental Health Act?, 2 LANCET 789 (1985).CrossRefGoogle Scholar

⁶⁵ National Health Service Vaccine Damage Payments Act 1979 § IV par. 140-142.

⁶⁶ Id. The legislation is analogous to worker's compensation statutes in the United States, in that it establishes an essentially “no fault” compensation scheme for personal injury. The British scheme compensates for injuries resulting from unavoidably unsafe vaccines. It is a pro-plaintiff system, since recovery is presumably easier than in a tort action, but it is pro-defendant in that the recoverable amount is limited by a specific ceiling.

⁶⁷ See infra discussion in text accompanying notes 76-83.

⁶⁸ The Rules of the Supreme Court (Amendment No. 2) 1985, Statutory Instrument 1985/846. See HALSBURY's LAWS OF ENGLAND, 1985 ANNUAL ABRIDGEMENT H 2033 (K. Musford ed. 1985).

⁶⁹ Since there are no contingent attorney fees to be satisfied from medical malpractice awards, however, the net effect of exercising the interim damages power to delay pay-outs may not produce as much disparity with U.S. awards as might at first appear.

⁷⁰ In the recent words of one commentator, “The current judicial attitudes, whilst sympathetic at times to the pitiful plight of some patient-plaintiffs, tend to favour and subconsciously protect, the medical profession.” Khan, , Medical Negligence: Some Recent Trends, 14 ANGLO-AM. L. REV. 155, 162 (1985).CrossRefGoogle Scholar

⁷¹ DENNING, THE DISCIPLINE OF LAW, 244 (1979). See also his comments in Roe v. Minister of Health, [1954] 2 Q.B. 66, 86-87: “[W]e should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients.” See also Gold v. Essex County Council [1942] 2 K.B. 293 and Goodhart, , Hospitals and Trained Nurses, 54 L.Q.R. 553 (1938).Google Scholar

⁷² See, e.g., Kennedy, , The Patient on the Clapham Omnibus, 47 MOD. L. REV. 454, 471 (1985).Google Scholar

⁷³ DENNING, THE DISCIPLINE OF LAW 243 (1979).

⁷⁴ The Times, (London) July 1, 1954, at 6, col. 1 and July 2, 1954.

⁷⁵ See, e.g., Donaldson, Court of Appeal Opinion in Sidaway, [1984] 1 All. E.R. 1018, 1020. “[The patient] received a letter from [the surgeon] asking her how she was getting on. Bearing in mind that the plaintiff was not a private patient, it is a great tribute to the surgeon's compassion and interest that he wrote as he did.” (emphasis added). See also Pain's comments about a defendant surgeon in Clark v. MacLennan, [1983] 1 All. E.R. 416, 422: “He is clearly an outstanding gynaecologist and a most impressive individual…” “Counsel for the defendants referred to Professor Turnbull's status as ‘Olympian'. My recollection of classical mythology is that the gods on Olympus were no strangers to error.” Clark, [1983] 1 All. E.R. at 422.

⁷⁶ The right to trial by jury in civil cases, unless the right has been granted by statute, was abolished in Ward v. James, [1966] 1 Q.B. 273. Civil cases in England, except for malicious prosecution, fraud, false imprisonment, libel and slander, are usually tried before a single overjudge, sitting without jury. Supreme Court Act, 1981, § 69(1). Lord Denning approves, citing the danger that juries may be bribed or threatened. DENNING, WHAT NEXT IN THE LAW? 61 (1980).

⁷⁷ See, e.g., Hotson v. Fitzgerald, [1985] 3 All. E.R. 167 (An award of 46,000 for major permanent disability was granted to a 13 year old child who injured his hip in a school accident. The award was reduced by 75 percent because only 25 percent chance of full recovery was lost through defendant's carelessly false diagnosis.).

⁷⁸ Kralj and Another v. McGrath and Another, QBD, June 27, 1984, reported in 1 LANCET 34 (1986).

⁷⁹ “Q.C.” is the abbreviation for Queen's Counsel. A Q.C. is a barrister who has “taken the silk” to join an elite cadre of barristers who are acknowledged to have high standing in the bar. Although a Q.C. does not “work for the crown,” appointment results in increased compensation and responsibility for more difficult legal cases. Megarry, , Barristers and Judges in England Today, 51 FORDHAM L. REV. 387, 392–4 (1982).Google Scholar

⁸⁰ Whitfield, The Assessment of Damages for Personal Injuries under English Law, in THE MEDICAL PROTECTION SOCIETY ANNUAL REPORT 13 (1984). See also KEMP & KEMP, THE QUANTUM OF DAMAGES (4th ed. 1975).

⁸¹ See Anaesthetics, THE MEDICAL DEFENCE UNION ANNUAL REPORT 19 (1986) which describes this unreported case, where liability was admitted and trial was on t he damages issue only.

⁸² Discussed in Gibbs, Why Try Our Patients?, The Times (London), May 30, 1986, at 11, col. 1.

⁸³ Report of the Treasurer, THE MEDICAL DEFENCE UNION ANNUAL REPORT 53 (1986) (approximately $16.7 million).

⁸⁴ Whitehouse v. Jordan, [1981] 1 All. E.R. 267, and Maynard v. West Midlands Regional Health Authority, [1985] 1 All. E.R. 635.

⁸⁵ [1983] 2 All. E.R. 245.

⁸⁶ Id. at 246.

⁸⁷ See infra note 190.

⁸⁸ [1983] 1 All. E.R. 416.

⁸⁹ Id. at 425. See also Jones, , Medical Negligence-the Burden of Proof, 134 NEW L. J. 7 (1984).Google Scholar

⁹⁰ Clark, [1983] 1 All. E.R. at 427.

⁹¹ See infra text accompanying notes 93-96.

⁹² See infra note 132.

⁹³ Approximately 7 percent of the British population is covered by private health insurance, primarily for elective procedures. Office of Health Economics, Compendium of Health Statistics, § 2, at 3 (5th ed. 1984). The privately insured also generally depend on the National Health Service for primary and tertiary care.

⁹⁴ By statute, a plaintiff is entitled to recover the cost of any necessary medical care provided privately, even though the NHS would have given comparable care. The Law Reform (Personal Injuries) Act, 1948, 11 & 12 Geo. 6, ch. 41, § 2(4).

⁹⁵ For a general discussion of NHS organization and operation.see J. GOODMAN, NATIONAL HEALTH CARE IN GREAT BRITAIN: LESSONS FOR THE U.S.A. (1980) The Fisher Institute, 1980. For a brief critical analysis of current NHS management, see Smith, , The Functions of a Health Service, 2 LANCET 806 (1985).CrossRefGoogle Scholar

⁹⁶ LANCET 653 (1985).

⁹⁷ “The U.S. doctor has been accustomed to having something to sell. … As a corollary, the U.S. public continues to treat its doctors as business operators, bringing suit when the commodity falls short of expectations. British patients, still more passive in their acceptance of care, would find it extraordinary to take such action.” STEVENS, THE EVOLUTION OF THE HEALTH CARE SYSTEMS IN THE UNITED STATES AND THE UNITED KINGDOM: SIMILARITIES AND DIFFERENCES IN PRIORITIES FOR THE USE OF RESOURCES IN MEDICINE (1977).

⁹⁸ See generally CRANSTON, LEGAL FOUNDATIONS OF THE WELFARE STATE (1985).

⁹⁹ See ATIYAH, ACCIDENTS, COMPENSATION AND THE LAW, Part 4 (3d ed. 1980).

¹⁰⁰ Klein, Rationing Health Care, 289 BRIT. MED. J. 143 (July 21, 1985).

¹⁰¹ Id.

¹⁰² For a succinct account of the somewhat arcane way students of the law in England become barristers and then judges, see Megarry, , Barristers and Judges in England Today, 51 FORDHAM L. REV. 387 (1982).Google Scholar

¹⁰³ Smith Kline & French v. Block, [1983] 2 All. E.R. 74. In another opinion, Lord Denning said: “[In America] the damages are colossal… . Experienced practitioners are known to have refused to treat patients for fear of being accused of negligence. Young men are even deterred from entering the profession because of the risks involved… .” Whitehouse v. Jordan, [1980] All. E.R. 650, 658.

¹⁰⁴ [1984] 1 All. E.R. 1018.

¹⁰⁵ The Master of the Rolls is the Chief Justice of the Court of Appeal.

¹⁰⁶ [1984] 1 All. E.R. at 1027. [Emphasis added] For a critical analysis of the Court of Appeal Decision, see Kennedy, , The Patient on the Clapham Omnibus, 47 MOD. L. REV. 454 (1984).Google Scholar

¹⁰⁷ Robertson, , Whitehouse v. Jordan—Medical Negligence Retried, 44 MOD. L. REV. 457, 461 (1981).Google Scholar

¹⁰⁸ The Royal Commission on Civil Liability and Compensation for Personal Injury, CMD. NO7054-I at 284(1978).

¹⁰⁹ Circular HM (54)32. See Lee, The Liability of Hospital Authorities for the Negligence of Their Staff—A History, ANGLO-AM. L. REV. 313 (1981). See also Samuels, The Basis of Legal Liability of the Hospital, 22 Med. Sci Law No. 2, 140. See also Gold v. Essex County Council [1942] 2 K.B. 293 and Goodhart, , Hospitals and Trained Nurses, 54 L.Q.R. 553 (1938).Google Scholar

¹¹⁰ Daily Mirror, March 9, 1984, at 1. See also Klein, Why Britain's Conservatives Support a Socialist Health Care System, HEALTH AFFAIRS, Spring 1985 at 42. Although Prime Minister Thatcher has realized substantial savings by “privatising” certain aspects of NHS operations, such as laundry and food services, any serious discussion of handing clinical services over to the private sector could be political suicide. The Parliamentary Under-Secretary for Health has reported savings of more than £13 million ($22,750,000) as a result of competitive tendering. 1 LANCET 1345 (1985). For a general analysis of the British Government's moves to turn certain aspects of its operations over to the private sector, see J. LEGRAND AND R. ROBINSON, PRIVATISATION AND THE WELFARE STATE (1984). With respect to health care specifically, see the essay therein by Maynard and Williams, Privatisation and The National Health Service, at 95. See also Deitch, , Commercial Management of NHS Hospitals, 1 LANCET 1285 (1985).CrossRefGoogle Scholar

¹¹¹ DAVID, PUBLIC HOSPITALS, PRIVATE MANAGEMENT (1980). In all probability, barring the immediate return of another Labor government, the NHS will slowly expand its role in financing, rather than producing, health services. For example, rather than increase its own capacity, the NHS is expected to hospitalize many of its own patients in the 50 new beds in a closed-unit psychiatric facility recently established by a subsidiary of the profit-making American Medical International Corporation. McKie, , Mr. Fowler Untroubled by Alarms about Private Moves in the Psychiatric Sector, 1 LANCET 1314 (1985).CrossRefGoogle Scholar However, the basic philosophical tenet that government will provide access to free health care for all will remain firmly entrenched. Day and Klein, , Towards A New Health Care System?, 291 BRIT. MED. J. 1291 (1985).Google Scholar

¹¹² On the impact of prospective budgeting on NHS expenditures, see Miller and Miller, , The Painful Prescription: A Procrustean Perspective?, 314 NEW ENG. J. MED. 1383 (1986).CrossRefGoogle Scholar

¹¹³ See particularly Lord Denning's dissent in LimPohChoov. Camden Health Auth., [1979] 1 Q.B. 196, 214, 1 All. E.R. 339: “If the sums get too large, we are in danger of injuring the body politic; just as medical malpractice cases have done in the United States of America. But the health authorities cannot stand huge sums without impeding their service to the community.“

¹¹⁴ In 1984, Britain spent 6.2 percent of its GNP on the National Health Service. Office of Health Economics, Compendium of Health Statistics Table 2.1 (5th ed. 1984). The U.S. spent 10.6% of its GNP on health care in that same year. U.S. Health Care Financing Adm., Health Care Financing Review, Fall 1985. See generally R. MAXWELL, HEALTH AND WEALTH (1981). Cf. McKie, , Just How Much More for the NHS?, 2 LANCET 1195 (1985)Google Scholar and Smart, and Draper, , Public Health and Economic Policy: Financing the NHS, 2 LANCET 1233 (1985).CrossRefGoogle Scholar

¹¹⁵ On the rationing issue, see generally H. AARON AND W. SCHWARTZ, THE PAINFUL PRESCRIPTION: RATIONING HOSPITAL CARE (1984).

¹¹⁶ 1977 National Health Service Act, §3(1) provides: “It is the Secretary of State's duty to provide … to such extent as he considers necessary to meet all reasonable requirements—(a) hospital accommodation … (c) medical … services … [and] (f) such other services as are required for the diagnosis and treatment of illness.“

¹¹⁷ R. v. Secretary of State for Social Services West Midlands R.H.A. and Birmingham A.H.A, [1979] 23 SJ. 436. Unreported in C.A., but reported in 2 LANCET 1224 (1984).

¹¹⁸ Douglas, Renal Failure and the Law, 2 LANCET 1319-20 (1985).

¹¹⁹ British Medical Association, The Handbook of Medical Ethics, H 10.44, 67 (1984).

¹²⁰ H. AARON & W. SCHWARTZ, THE PAINFUL PRESCRIPTION: RATIONING HOSPITAL CARE 107 (1984).

¹²¹ Grubb, Why Britain Can't Afford Informed Consent, Hastings Center Report, August 1985, at 19. For example, kidney dialysis is allegedly denied to many end stage renal disease patients for financial reasons. H. AARON & W. SCHWARTZ, supra note 120, at 29-31 (1984).

¹²² H. AARON & W. SCHWARTZ, supra note 120, at 29-56, (1984). See also Douglas, , Renal Failure and the Law, 2 LANCET 1319 (1985)CrossRefGoogle Scholar; and Parsons, and Lock, , Triage and the Patient with Renal Failure, 6 J. OF MED. ETHICS 173 (1980).CrossRefGoogle Scholar

¹²³ MEDICAL DEFENCE UNION ANNUAL REPORT 63 (1984). By escaping classification as an insurance company, the MDU avoids regulation under the Insurance Companies Act of 1974. Medical Defence Union Ltd. v. Dept. of Trade, [1979] 2 All. E.R. 421. For an historical discussion of medical malpractice in Great Britain, with emphasis on the role of the Medical Defence Union, see HAWKINS, MISHAP OR MALPRACTICE? (1985). Technically the Union reserves the right to decide whether to defend, and thus to indemnify, its members against claims for medical malpractice. In practice, however, it almost always does so. The benefits of membership include:

1. (1)

   (1) Advice on any matter connected with medical or dental practice, or while serving in a public or other service.

2. (2)

   (2) Assistance in defending proceedings where a question of professional principle is involved.

3. (3)

   (3) Assistance in vindicating a member's professional interests, honour and character.

4. (4)

   (4) Assistance in proceedings brought by a patient arising from the act or omission of himself or of:

• (a) a partner who is a member of any other defence or protection society with which a reciprocal arrangement has been effected;

• (b) an assistant who is a member of any other defence or protection society with which a reciprocal arrangement has been effected;

• (c) a locum tenens, whether or not a member of any defence or protection society;

• (d) a subordinate medical or dental officer, including a house surgeon or similar hospital medical or dental officer, whether or not a member of any defence or protection society;

• (e) an assistant or subordinate who is not a registered medical or dental practitioner, such as a nurse, dispenser, radiographer, physiotherapist, dental auxiliary or laboratory technician, etc.

• (5) Assistance when damages and costs are awarded by a court or a settlement is made out of court.

THE MEDICAL DEFENCE UNION ANNUAL REPORT 73 (1984).

¹²⁴ See, e.g., THE MEDICAL PROTECTION SOCIETY ANNUAL REPORT 17 (1984) and Halle, The Cost of Medical Defence, 2 J. OF THE MED. DEFENCE UNION NO. 2, 3. (“It is t he policy of the Union to resist every claim which the Council considers defensible.“).

¹²⁵ Addison and Baylis, The Malpractice Problem in Great Britain: An Overview of Medical Malpractice, Appendix: Report of the Secretary's Commission on Medical Malpractice (DHEW Pub. No. (05) 73-89) 854 (Jan. 16,1973). In the United States nuisance claims are more likely to be settled to avoid incurring litigation expenses.

¹²⁶ C.H.H. Butcher, Hempsons Solicitors, conversation of June 4, 1984.

¹²⁷ Simanowitz, , Standards, Attitudes and Accountability in The Medical Profession, 2 LANCET 546 (1985).CrossRefGoogle Scholar Mr. Simanowitz is Director of Action for Victims of Medical Accidents. See supra note 5 and accompanying text.

¹²⁸ THE MEDICAL DEFENCE UNION ANNUAL REPORT 12 (1986).

¹²⁹ 70% Rise in Subscriptions to MPS and MDV, 2 LANCET 527 (August 30, 1986).

¹³⁰ Cf. Harland, and Jando, , The Medical Negligence Crisis, 24 MED. SCI. LAW 123 (1984)CrossRefGoogle Scholar, which bemoans the “ever-increasing subscription rates of the defence societies” in Great Britain.

¹³¹ MEDICAL DEFENCE UNION ANNUAL REPORT 11 (1986).

¹³² See generally CRANSTON, LEGAL FOUNDATIONS OF THE WELFARE STATE 1985.

¹³³ For a critical, though somewhat dated, description of legal powers of the state medical boards, see S. LAW & S. POLAN, PAIN & PROFIT: THE POLITICS OF MALPRACTICE 39-50 (1978).

¹³⁴ HC(81)5.

¹³⁵ Id. at Part III.

¹³⁶ The NHS is organized into fourteen regional health authorities, which are subdivided into district health authorities which run hospitals at the local level. See generally Office of Health Economics, Compendium of Health Statistics (5th ed. 1984).

¹³⁷ 1983 DHSS Report on Operation of Procedure for Independent Review of Complaints Involving the Clinical Judgment of Hospital Doctors and Dentists at 4.

¹³⁸ Letter from Ass't Sec'y of Dept. of Health and Social Security to NHS General Managers, 11 June 1986. DA (86) 14. Mr. John Patten, Parliamentary Under-Secretary of State for Health and Social Security testified that the NHS received 19,000 written complaints in 1983. HANSARD, 22 Feb. 1985 p. 1386. The large volume of formal complaints should be compared with the relatively small number of writs issued for medical malpractice in 1981. See supra note 8 and accompanying text.

¹³⁹ See generally Complaints Arising from the Exercise of Clinical Judgment, 17 HEALTH TRENDS 70 (1985).

¹⁴⁰ Of the 60 percent of referred cases on which review had been completed at the time the report was issued, outside experts “identified defects in procedures associated with the cause of the complaint” in half the cases in England and 75 percent of the cases in Wales. See supra note 134, at 2.

¹⁴¹ Reimbursement is for out-of-pocket costs only. Arguably, these payments have symbolic value to injured patients and decrease the impetus to litigate.

¹⁴² See generally National Health Service Reorganisation Act, 1977, §§ 110, 113, 115-117.

¹⁴³ Id. at § 115.

¹⁴⁴ For example, in 1984-85, every single one of the remedies prescribed by the Commissioner was implemented. Health Service Commissioner, Annual Report for 1984-85, 39 (1985).

¹⁴⁵ National Health Service Reorganisation Act, 1977 § 116(I)(b). Although the patient may have agreed not to bring suit, an adverse decision by the Ombudsman would not constitute res judicata if subsequently a suit is in fact instituted.

¹⁴⁶ NHS Act 1977, § 116. In THE twelve years in which the Health Service Commissioner has been hearing complaints, “Only a handful of complainants have reneged” on their guarantee not to litigate. Paper delivered by G. Marsh, Deputy Health Service Commissioner, at the American Bar Association Convention, July 18, 1985, at 2.

¹⁴⁷ G. Marsh, supra note 146, at 2.

¹⁴⁸ National Health Service Act, 1977, Sched. 13, f 19(1) (emphasis added).

¹⁴⁹ Health Service Commissioner, Annual Report for 1985-86, app. C (1986).

¹⁵⁰ Id. at 18-26.

¹⁵¹ Id. at 12-14.

¹⁵² Id. at 29-33.

¹⁵³ Id. at 6.

¹⁵⁴ Id. at 57, app. D.

¹⁵⁵ Id. at 46-54.

¹⁵⁶ Id. at 54.

¹⁵⁷ Id. at 46-54.

¹⁵⁸ Id. at 46. In every single case investigated during 1985-86 wherein the Ombudsman requested an apology on the part of the health authority, the apology was given.

¹⁵⁹ See generally, National Health Service (Service Committees and Tribunals) Regulations 1974, as amended. The GP complaints procedure has been criticized as “less than satisfactory” for reasons ranging from excessive formality to the fact that it involves complaining to the body that administers the system. I. KENNEDY, THE UNMASKING OF MEDICINE 127 (1981). Charges in the procedures are currently under consideration. See generally Family Practitioner Services Complaints Investigation Proceeding, DHSS Consultation Document, August 1986. There are approximately 27,000 NHS general practitioners in England and Wales. Office of Health Economics, Compendium of Health Statistics 13 & Table 4.5 (5th ed. 1984).

¹⁶⁰ Cognitive and procedural services represent the two major subdivisions of clinical medical malpractice. Cognitive services are those that “directly employ an M.D.'s perception, judgment and knowledge to determine what is wrong with the patient and decide upon a course of treatment, such as complete history and physical examinations, office and hospital visits and consultations.” Procedural services are “those that involve the use of technical or normal skills to obtain clinical data or to treat disease including x-rays, CT scans and surgical procedures.” AMERICAN MEDICAL NEWS, Oct. 14, 1983 p. 1, col. 2.

¹⁶¹ Complaints to FPCs, 1 J. OF THE MED. DEFENCE UNION 7 (Spring 1985).

¹⁶² Personal conversation with the author, April 3, 1984.

¹⁶³ General Medical Council, Professional Conduct and Discipline: Fitness to Practise, Part III

¹⁶⁴ Id.

¹⁶⁵ Judicial notice is taken of this point. See, e.g., Clark v. MacLennan, [1983] 1 All. E.R. 416, 419, where the court commented as follows on the “mistake” made when a formal hospital discharge note was not sent to the plaintiff's GP: “This was a sad omission as the counsel and encouragement which a general practitioner may give can play some considerable part in persuading a patient to continue with conservative treatment.“

¹⁶⁶ Current Practice 3 (March 23, 1984). For a more recent controversy involving a deputising service, see Brahams, Death of Patient after Delayed Response from Deputising Service, 1 LANCET 641 (Sept. 13, 1986).

¹⁶⁷ See Medical Act, 1983, c. 54, Part V §§ 35 el seq. See generally Whitfield, The General Medical Council in MEDICAL MALPRACTICE 1 (J. L. Taylor ed. 1980); and Stacy, Professional Unity vs. Professional Control: Tensions in Professional Self-Regulation. The Case of the British General Medical Council. Paper delivered at Ninth International Conference in the Social Sciences and Medicine, Korpilampi, Finland, July 1985. Registration is the equivalent of licensure in the United States.

¹⁶⁸ General Medical Council, Professional Conduct and Discipline: Fitness to Practice, Part II

¹⁶⁹ Medical Act, supra note 80, at § 36.

¹⁷⁰ Even though the General Medical Council is not as effective as it could be, it provides the appearance of oversight, and thus demonstrates official concern for patient welfare. The Council's symbolic impact cannot be measured, but its potential for lessening the propensity for patients to sue should not be ignored.

¹⁷¹ General Medical Council, Annual Report 9 (1985).

¹⁷² Id. at 11-12.

¹⁷³ Id. at 13-14.

¹⁷⁴ Id. at 10.

¹⁷⁵ Id.

¹⁷⁶ Id. at 19 table 3.

¹⁷⁷ Id. at 16.

¹⁷⁸ Rodgers v. GMC, Privy Council Appeal, Nov. 19, 1984, reported in 1 LANCET 118 (Jan. 12, 1985).

¹⁷⁹ General Medical Council, Annual Report 10 (1985).

¹⁸⁰ For a critical discussion of the GMC's function See Gruneberg, The Disciplinary Function of the General Medical Council, 1 LANCET 1287 (June 9, 1984).

¹⁸¹ General Medical Council, Professional Conduct and Discipline: Fitness to Practise (1983). In April 1985, the GMC approved an addition to Part II(i) paragraph (a) of the Blue Book which stated that the public is entitled to expect a “Good Standard of Care” from registered physicians. This was denned to include:

• (a) conscientious assessment of the history, symptoms and signs of a patient's condition;

• (b) sufficiently thorough professional attention, examination and, where necessary, diagnostic investigation;

• (c) competent and considerate professional management;

• (d) appropriate and prompt action upon evidence suggesting the existence of a condition requiring urgent medical intervention; and

• (e) readiness, where the circumstances so warrant, to consult appropriate professional colleagues.

A comparable standard of practice is to be expected from medical practitioners whose contribution to a patient's care is indirect, for example those in laboratory and radiological specialities.“

¹⁸² Serious Professional Misconduct, Points from Report of GMC Working Party, 2 LANCET 1105, 1105-06 (Nov. 10, 1984).

¹⁸³ See supra text accompanying notes 1-4.

¹⁸⁴ HANSARD, NOV. 11, 1985.

¹⁸⁵ See Brahams, ‘Wo Fault” Compensation: Reform of Present System Long Overdue, 1 LANCET 1403 (June 15, 1985).

¹⁸⁶ Deitch, Compensation for Medical Mishap, 1 LANCET 1226, 1227 (May 25, 1985).

¹⁸⁷ Royal Commission on Civil Liability and Compensation for Personal Injury, Vol. One, CMD 7054-1, at § 1338 (1978).

¹⁸⁸ Id. at § 1370.

¹⁸⁹ Id. at §996.

¹⁹⁰ For a comprehensive look at current thinking on personal injury compensation systems in general, see Symposium: Alternative Compensation Schemes and Tort Theory, 73 CALIF. L. REV. 548 (1985).Google Scholar Sweden, which instituted a medical accident compensation scheme in 1975, imposes criminal liability for bodily harm caused by negligence, and physicians have been convicted of such negligence under the Swedish Criminal Code. Hellner, Sweden MEDICAL RESPONSIBILITY IN WESTERN EUROPE 694 (E. Deutsch and H.L. Schreiber eds., 1985). In addition, the Swedish Responsibility Board for Health and Medical Care performs a more traditional oversight function. Id. at 695-99. Moreover, the Swedish Constitution of 1974 prohibits the government from involuntarily interfering with bodily integrity. The Swedish Constitution, Chap. 2, § 6. Since county councils provide the vast majority of health care pursuant to a National Health Insurance scheme, parallel criminal code provisions apply to the 15 percent of physicians in private practice. Id. at 689, 693. Patient self-determination may be strengthened by local control of the health care delivery system. The personal autonomy rights of Swedish patients thus theoretically enjoy stronger protection than they do in Great Britain under Sidaway.

New Zealand is apparently the only other country in addition to Sweden to have instituted a no-fault compensation scheme for iatrogenic injury. See generally Smith, , Malpractice: a New Zealand Solution to an American Crisis?, 291 BRIT. MED. J. 812 (1985)CrossRefGoogle Scholar; Smith, , Compensation for Medical Misadventure and Drug Injury in the New Zealand No-Fault System: Feeling the Way, 284 BRIT. MED. J. 1457 (1982)CrossRefGoogle Scholar; Smith, , Problems with a No-Fault System of Accident Compensation, 284 BRIT. MED.J. 1323 (1982)CrossRefGoogle Scholar; and Smith, , The World's Best System of Compensating Injury?, 284 BRIT. MED. J. 1243 (1982).CrossRefGoogle Scholar