The emotion aspect of the Protocol
TheProtocolwasaproductofconsensusopinionofallthemaininterestedparties
inclinicalnegligencelitigation.Itsimplementationshouldresultinamorecaring
and efficient handling of clinical negligence cases and complaints.
WhatisclearlyapparentfromreadingtheProtocolistheextenttowhichregard
has been had to the emotional aspects of clinical negligence litigation: how
clinicians and patients canfeelabout the litigation process has been taken into
account in the Protocol. The good practice commitments address many of the
concerns Lord Woolf raised in his final report [16]. Legal education for health
carers, patient communication strategies and reflective clinical practice are all
discussed.Soofteninlegalprocedures,the`howpartiesfeel'aspectofproceedings
appearstohavebeenneglected.Theadversarialnatureofourproceduresandlegal
system has resulted in a combative and competitive approach to litigation. The
Woolf Report [16] and subsequently the Clinical Disputes Forum seem to have
pausedandtakenastepbackandhavetakenintoaccounttheemotionalaspectof
clinical negligence proceedings.
The Woolf reform themes
Lord Woolf [16] set the focus and theme for the procedural reforms in clinical
negligence litigation when he gave his reasons for looking at medical negligence:
`TheansweristhatearlyintheInquiryitbecameincreasinglyobviousthatitwas
in the area of medical negligence that the civil justice system was failing most
conspicuously to meet the needs of litigants in a number of respects.
.a) The disproportion between costs and damages in medical negligence is
particularly excessive, especially in lower value cases.
.b) The delay in resolving claims is more often unacceptable.
.c) Unmeritorious cases are often pursued, and clear-cut claims defended, for
too long.
.d) The success rate is lower than in other personal injury litigation.
.e) The suspicion between the parties is more intense and the lack of co-
operation frequently greater than in many other areas of litigation.'Factor .e) is particularly noteworthy because it singles out clinical negligence
litigationfromotherareasanddrawsattentiontoitsspecialemotivenature.Lord
Woolf further considered this aspect and responded to it in his report when he
calledforachangeofcultureinclinicalnegligencelitigation.Henotedthemistrust
that can sometimes exists between the parties and stated:
`If that mistrust is to be removed, the medical profession and the NHS
administration must demonstrate their commitment to patient's well-being by
adopting a constructive approach to claim handling.
It must be clearly accepted that injured patients are entitled to redress, and
that professional solidarity or individual self-esteem are not sufficient reasons
for resisting or obstructing valid claims.'Lord Woolf also considered the doctors' perspective on clinical litigation:
66 Nursing Law an dEthics