It began with a television drama and a letter to the Guardian. In 1982 the scriptwriter Peter Ransley wrote a play for BBC2, Minor Complications, about a woman whose minor operation in an NHS hospital had gone wrong. When she tried to find out how and why the mistakes had happened, she was met with hostility and silence from the medical profession; and when she tried to get compensation for her suffering she found herself at the mercy of incompetent lawyers.
The public response to the play was extraordinary. Ransley received hundreds of "that happened to me too" letters, a reaction that persuaded him that he had uncovered a submerged cache of great distress.
His letter to the Guardian, calling for the setting up of an organisation dedicated to the legal needs of victims of medical accidents, produced enthusiastic replies, among them one from Arnold Simanowitz, a south London solicitor "ready for a change, anxious to do something more worthwhile".
The charity Action for Victims of Medical Accidents - Avma - started in 1982 with Simanowitz as its director. Tomorrow an ad appears in the Guardian seeking his successor. He will be an impossible act to follow. Lawyers and others in the field of clinical negligence agree that Avma - which in effect means Simanowitz - has had a profound influence in turning a tiny, hidden corner of the law into a high-profile, big-money industry.
When Avma began, claims for compensation for medical negligence over mistakes by hospitals and doctors could be measured in the hundreds. Lawyers who had any idea of how to conduct such cases were few, and there was no way other than luck that an injured patient could find a competent one. The vast majority of patients harmed by the negligent error of a hospital or doctor never got to first base in trying to get compensation. Those that did get started faced implacable legal stonewalling from the medical authorities. Only they knew what had really gone wrong and only they had the records or documents that told the story; but they were determined not to tell.
Today, claiming for clinical negligence (the term that has now officially replaced "medical negligence") is a booming business. It has become commonplace for judges to award damages of millions of pounds to individuals who have suffered catastrophic brain damage as a result of a surgeon's or anaesthetist's negligence. Lower down the injury scale, away from media publicity, tens of thousands of victims are receiving compensation every year.
It has been estimated that there are some 850,000 medical accidents annually in the UK. Many hospital trusts now employ officials whose sole job is to assess the legal and financial risks that may ensue from the negligence of their doctors. Most spectacularly, last year the national audit office reported that NHS hospitals were potentially facing claims totalling £3.9bn. Even if, as some critics have claimed, that figure is exaggerated, there is no doubt that the NHS sees legal claims against it as one of its biggest headaches, so much so that a committee under the chief medical officer, Professor Sir Liam Donaldson, has been conducting an inquiry into the issue and is expected to report soon.
If, from the point of view of the Treasury and the taxpayer, compensation claims appear to have got out of hand, from the victims' point of view the explosion of clinical negligence litigation has been entirely beneficial. Avma has played a large part in bringing this about, not least in its campaigns to ensure that lawyers handling negligence claims on behalf of patients know what they are doing. Patients wanting to sue now have access to registers of experienced practitioners. Only solicitors who have shown expertise in such cases can get legal aid for their clients.
As a consequence of Lord Woolf's recent reforms, the procedure for taking cases to court has become easier. Hospitals are no longer able to hide behind the wall of silence that was once their usual mode of defence; they have to disclose what they know about the medical accident. Unlike in other personal injury cases, legal aid for clinical negligence has not been abolished and there is special funding for cases that require a lot of money upfront to conduct initial research into complex medical issues. And now casesbrought by patients who don't qualify for legal aid can be on a "no win, no fee" basis, though the steep premiums payable to insure against losing are a continuing problem.
But the growing success of clinical negligence litigation, the increase in levels of compensation, the streamlining of legal procedures and the greater awareness of victims that they may be entitled to sue, have had their inevitable effect: there is too much money leaving the NHS in compensation and legal costs.
Donaldson's agenda may include a "no blame" system for some categories of clinical accidents. The victim would no longer have to prove that the doctor or hospital was negligent. It would usually be enough to say, "I went into hospital. Someone there made a clinical error. As a result I have now got something else wrong with me. So pay up."
Professor Ian Kennedy QC, one of the leading academic lawyers in the field and chairman of the inquiry into the baby hearts scandal at the Bristol royal infirmary, believes that a "no-blame" system is desirable and inevitable. Such a scheme, he says, would reduce the lottery of court cases which can take years and offer no guarantee of victory.
Health secretary Alan Milburn has expressed interest in a no-blame system, because it could potentially save a lot of public money. There would be fewer lawyers' fees, and damages for compensation could be forcibly capped - meaning less money for aggrieved patients.
Simanowitz agrees that a system that doesn't rely on the adversarial procedure may be the answer for smaller claims. But he adds, "Every bit as important as the legal process is the need for patients to understand what happened, to get an explanation of how and why it happened, receive an apology and assurances that it won't happen again." If all that was done, the money aspect would not be so important, he says - a conclusion supported by several surveys of victims over recent years.
He believes that claims worth up to, say, £10,000 could be handled by an efficient complaints system without going to law. "At the moment, patients have to go through a whole complaints procedure, and then, if their complaints are upheld and they want compensation, they have to start all over again in the courts, get a solicitor, apply for legal aid and so on. I know that most patients would prefer a quick system which gave them the answers, assured them it wouldn't happen again, and awarded them £5,000, rather than a long, drawn-out complaints system followed by a long, drawn-out compensation system which gets them £10,000".
But such a quick and rough system would not do for larger claims involving more serious injuries. For those, he believes, some form of adversarial system, with lawyers, would still be needed.
As a result of Avma's activities, "it is now much easier for patients who've been harmed to get compensation," Simanowitz says proudly. "But even more important is the change in attitude of the powers that be - government, NHS trusts, hospital management, doctors, lawyers. All of them now recognise that medical accidents are a problem. They weren't a problem 20 years ago. And a lot of things are being done."
He is particularly pleased at last week's announcement of the setting-up of an NHS inspectorate - something Avma has been campaigning for for years. "Things go wrong because there isn't any accountability. The medical profession used to be just about untouchable. It's got better and better, and now there's to be a fully fledged inspectorate. But it's one thing to set it up; the question is, will it be doing its job in the interests of patients?"
For all Avma's successes, says Simanowitz, it hasn't changed the culture of the medical profession sufficiently. "There have been changes in regard to litigation, making it easier to get compensation, but what I mean by a change of culture is that every doctor should see a medical accident as a reason for them to help the patient and not to worry about the money, the compensation. We need to separate these two things. Sometimes doctors are only prepared to be open if they're not going to be blamed, if there's not going to be a court case, if there's not going to be compensation. That's the culture I want to see changed. The big battle to come is to get the medical profession to see patients who are hurt as patients needing help, and not to bother about the financial side."
