SPECIAL REPORT LAW

Published: 07/11/2002, Volume II2, No. 5830 Page 34 35

Arnold Simanowitz is a longstanding champion of victims of medical negligence and was partly responsible for its development as a legal specialty. He talks to Mark Gould about his career

Even though he has spent 20 years campaigning for the victims of medical accidents, there is one blunder that will stay with Arnold Simanowitz forever.

'A 16-year-old boy broke his arm and had it set, ' he says. 'The arm healed with adhesions, making movement difficult. The consultant told him and his parents: 'do not worry, we can get you in first thing tomorrow and manipulate the arm under general anaesthetic. It is not even an invasive procedure.'

'The boy has the operation and wakes up all alone in a private ward. His arm feels itchy and he pulls back the sheet to scratch it.

It has been amputated. They had mixed up two patients.'

'What horrified me, ' Mr Simanowitz adds, 'is that medicine is the most caring profession in the world, yet nobody told [this boy's] parents; he was stuck in a private ward all on his own, with no-one to tell him what happened.'

Mr Simanowitz is retiring in January as chief officer of Action for Victims of Medical Accidents, a post he has held since 1982.

AVMA has had a profound influence on some of the most powerful vested interests in the UK - doctors and lawyers - though this is certainly belied by its modest headquarters, three floors above an art shop in Croydon, south London.

The failures in the amputation case encapsulate AVMA's aims.

'When we were set up, people who had suffered medical accidents didn't know what had happened to them. We wanted the health service to look after them and appoint somebody who would investigate, do something about it and make sure it wasn't repeated.

'When things go wrong, people feel really let down. That is exacerbated when they can't find out what happened and nobody seems terribly interested. That is changing - we have had a marked effect on changing attitudes.'

But AVMA has had a role in influencing patients as well. Mr Simanowitz feels that one of the reasons the UK is not aping the US 'compensation culture' is that AVMA has helped patients to see problems in perspective.

It has also been able to find alternatives to legal forms of redress. Of the 5,000 people who contact AVMA every year, the numbers referred to solicitors are 'in the hundreds'.

AVMA was born of Minor Complaint, a TV dramadocumentary in 1981 about a woman who nearly died when a laparoscopy went wrong, puncturing her bowel.

The drama followed her complaint and threw into relief the silence from doctors and the bafflement of solicitors unused to dealing with medical negligence claims. The programme sparked a mass of inquiries from people with similar experiences.

AVMA's launch, funded by a grant of£18,000 from the 'good old Greater London Council', was greeted with a 'certain amount of hostility - people were wary, they wanted to know what we were going to do and they were worried as [professional] bodies'. In a bid to ease these fears, AVMA said it wanted to work with doctors. 'We have always tried to understand the position of doctors while being very outspoken about the needs of patients.'

One of AVMA's major contributions to the British medico-legal scene has been to help develop medical negligence as a legal specialty, using a lot of Mr Simanowitz's personal contacts gained through his work as a personal injury lawyer.

'We got together to discuss cases and formed a lawyers' group to look at what the problems were and the best way of dealing with them, ' he says. 'We also created a resource facility for solicitors and that is where AVMA started making money.'

AVMA also broke new ground in identifying medical experts who were sympathetic to patients.

'That was probably one of the most important things we did.'

Its watershed year was 1996.

The civil justice reforms carried out by Lord Woolf saw the introduction of offers to settle, pre-action protocols to speed preliminary information gathering and the creation of a clinical disputes forum.

Mr Simanowitz says that Woolf made litigation faster and fairer.

But he is less enthusiastic about another element of the package - the introduction of 'no win, no fee', which he describes as 'a compromise'. He would rather have seen legal aid extended to all, subject to means testing.

'NWNF means that you have commercial bodies making a decision as to whether there is a profit to be made by taking a case, and that causes problems for patients, ' he says. He also sees problems with an alternative reform, much discussed over the years: the introduction of nofault compensation.

The chief medical officer is currently undertaking a review of medical negligence and AVMA would like him to include small compensation payments in the complaints system.

But Mr Simanowitz says claims for catastrophic damage cannot be dealt with this way.

'If you paid everybody without any query, it would be hugely expensive and the figures would not stand up, ' he says. 'Look at the top of the scale: braindamaged babies. They are getting£3m-£5m for their lifetime needs. If you paid out£5m to every single brain-damaged baby, then the government would have problems. You can't include large claims, but you can talk about small amounts.'

Doctors' medical indemnity organisations say such a move would be a backward step. Mr Simanowitz says they are 'looking through the wrong end of the telescope'.

'Compensation is not punishment. If something goes wrong, it is the obligation of the healthcare worker to try to sort it out. That way, they wouldn't be thinking in terms of punishment.'

And he adds: 'Whatever legalistic resistance is raised should not obscure the fact that patients and doctors want the whole thing done as quickly as possible and as informally as possible - for which there has to be quid pro quo.'

Last year, Mr Simanowitz received the ultimate establishment accolade - an OBE for services to the victims of medical accidents - which he regards as a tribute to the organisation rather than himself.

He also sits on the General Medical Council's professional conduct committee and is a member of the new National Patient Safety Agency. Does this mean that AVMA has also lost some of its radical edge?

'I do not think organisations like this go very far if they are too responsible, ' he says. 'You have to shout the odds.'

CV: Arnold Simanowitz

Born: 12 December 1938, Cape Town, South Africa.

Studied: Cape Town University; qualified as an attorney in South Africa.

Worked: Came to the UK in 1962 and worked as a solicitor. Moved to Zambia, then returned to the UK in 1969 and specialised in legal aid work - housing, family and personal injury cases. Became chief officer of Action for Victims of Medical Accidents in 1982.

Personal: Married with two grown-up children.

Interests: Politics - former Labour councillor in Croydon, amateur dramatics, cycling, walking.

Case study: Ceri Ann Walters v North Glamorgan trust

The law is not immune to fashion, and claims for nervous shock could be the next big thing. The courts are becoming more willing to extend the circumstances in which psychiatric injury or nervous-shock claims can be made and this is encouraging claimant lawyers to be more adventurous.

Of particular concern are recent successful claims by relatives who suffered nervous shock after witnessing events in hospital. Staff not only need to provide appropriate levels of care to patients but manage and protect the emotions of accompanying relatives.

In Ceri Ann Walters v North Glamorgan trust , the claimant had been sleeping in the hospital room of her 10-month-old son, Elliot. She awoke to hear him choking and saw he had vomited a large amount of blood. The hospital staff reassured her that, though Elliot had suffered a fit, it was unlikely he had been seriously injured. In fact, he had suffered a major epileptic seizure.

Elliot was transferred to another hospital for a liver transplant. The claimant followed and was 'stunned' to learn on arrival that Elliot had suffered severe brain damage and was now on a life support machine. He died in his mother's arms 36 hours after the choking incident.

The question was whether the claimant's pathological grief reaction had been caused by shock. In the House of Lords case Alcock v chief constable of South Yorkshire , it was held that shock involved 'the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system'.

In Walters , the trust argued the claimant had gradually appreciated the consequences of Elliot's illness, so there had not been the required 'shocking event'. The trial judge rejected this and decided the 'horrifying event' began when Elliot started choking and ended with his death 36 hours later.

Trusts will be aware of the importance of procedures for reporting incidents, particularly since the creation of the National Patient Safety Agency. But they should also be considering their exposure to this new category of claims.

Trusts need to review their policies and weigh up the benefits of providing information to relatives early, instead of waiting for more accurate diagnoses.

A further worrying development for trusts occurred in a recent case handled by this firm. At the moment, a secondary victim (for example, a witness to an accident or other horrifying event) must be able to prove a close relationship to a primary victim (someone involved in an accident or its immediate aftermath) in order to claim damages. In this case, counsel for the claimant argued, thankfully unsuccessfully, that somebody completely unrelated could claim for nervous shock - as long as the event was sufficiently horrific and they were sufficiently close to it.

In effect, counsel argued that a sliding scale should be constructed, so the more horrific the spectacle, and the closer the witness to it, the less need there should be to prove ties to the victims involved. The claimant has now petitioned the Appeal Court for permission to appeal.

If successful, this could significantly extend the class of people entitled to recover compensation in this developing area of law.

At present, there are hurdles to be cleared should a secondary victim wish to successfully claim for nervous shock. However the law continues to develop and vigilance is required. If the current restrictions on the classes of people entitled to claim are relaxed, trusts may need to review protocols regarding the presence of family and friends in certain areas of the hospital.

Ian Long, partner, Weightman Vizards