The medical profession receives a lot of sympathy when it comes to negligence claims, but is this special pleading?

What is ‘special pleading’? One definition is the application of a set of standards/rules generally, whilst exempting one particular group from those same standards/rules without justification.

Here I want to examine whether the medical profession ought to have a special status, over and above the other professions, when it comes to negligence claims. Is medicine sacrosanct? Or should doctors be held to account in the same way as surveyors, lawyers, financial advisors and so on?

I have often read (with some sympathy I might add) that the fear of being sued places a huge amount of strain on medical professionals, and adversely affects the way that they practise medicine. The insurance industry, and much of the mainstream media, rally around the medical profession and take aim at the ‘blood-sucking’ lawyers who represent injured claimants.

We’ve all seen the headlines. Claimants and their legal teams are often blamed for ‘crippling’ the NHS (despite the fact that the total negligence bill last year represented just over 1% of the NHS budget), and the ‘compensation culture’ is almost exclusively associated with personal injury and clinical negligence lawyers.

However, nobody seems to sympathise with other professionals who are facing negligence claims.

Consider the following (hypothetical) examples:

• A chartered surveyor fails to inform a prospective house buyer about a serious defect in a property, and the prospective house buyer later loses all of their equity in the house when they come to sell it.
• An independent financial advisor (‘IFA’) provides negligent financial advice, and an elderly couple lose their entire pension fund.
• A criminal defence lawyer overlooks a key piece of exculpatory evidence, and his client (an innocent man) is jailed for life.

The result in each of these hypothetical scenarios is serious, and potentially life-changing. None of the professionals involved intended for these outcomes to occur, and they were going about their work with honesty and the best of intentions. It just so happened that the standard of service provided was so poor that it was deemed to be negligent.

However, can you imagine a newspaper headline which rushes to the defence of the IFA, and blasts the ‘bottom feeding’ lawyers who represent the destitute elderly couple who lost their pension? I think not.

Is this ‘special pleading’, or is there something about the medical profession which sets them apart?

There are several justifications that I hear regularly:

• medicine is not an exact science. True, but neither is practising law or providing financial advice.
• the NHS is paid for out of the public purse. True, but the public also foot the bill for the criminal defence lawyer in the above example (and all other legal aid lawyers besides).
• medicine is complex. Absolutely, but tell that to an actuary, for example.

The most common (and I believe the most compelling) argument in favour of exempting medical professionals is that doctors are in the business of doing good. Medicine is innately ‘worthy’. Doctors are interested in fixing people, not in making money. This is the argument that causes me the most trouble, as I sympathise hugely with the intentions of the medical profession.

However, when I think through the problem rationally, I realise that exempting any profession on the basis of ‘inherent worthiness’ is extremely problematic.

Do we have a scale of worthiness? Do we completely exempt an infectious diseases doctor who works for the Red Cross, but only partially exempt a private cosmetic breast surgeon? What if you’re a human rights lawyer for amnesty international? Should the human rights lawyer be sued if they are negligent, but a GP who misses the red flag signs of bowel cancer be immune from criticism? What of an actuary who works exclusively for NGOs and charities? Culpable or not? Who would decide where, on the scale of worthiness, a potential defendant would sit?

There’s no right answer to any of these questions, other than to apply the law no matter the profession.

We are all in the same boat

Ultimately, clinical negligence lawyers did not invent the system. They work within it to compensate patients who are genuinely in need following proven or admitted negligence.

I do not want to exist in a blame culture, but all professionals are in the same boat. If we want to change the system for all professionals, I’m all for it.

However, I do not believe it is right to suspend the rules only for a select few, however worthy their intentions. Especially when the lives of innocent patients can be changed irrevocably when negligence occurs.

The rules of professional negligence should apply to all professionals or none at all. To suggest otherwise, it seems to me, is the definition of special pleading.