WHEN NEED
OUTWEIGHS BLAME
The
Sunday Times (London) April 3 1988
After
a "vaccine-damage" ruling last week,
children will not get help. BRIAN DEER says all
disabled people should have equal rights.
IMAGINE
for a moment that you have three brain-damaged
children. One was allegedly injured by a drug or a
medical procedure. Another was knocked down in a road
accident. And the third was among the 20 born each
day in Britain with a mental handicap. Assuming the
damage is the same in each case, ask yourself the
question: which needs the greatest help?
You
might think the inquiry is a uniquely foolish one.
Any parent is likely to be less concerned with
exactly how the injury was caused that with
the nature of the disability, the prospects for
improvement and the life opportunities that stretch
out before their child. Whether you blame fate, a
driver, or a doctor, the child's present and future
needs are going to be the same.
There
is the extra care and supervision that will probably
be required. A special nursery and an appropriate
school place may have to be arranged. There might be
frequent visits to the physiotherapist, GP, or
hospital. And, somewhere in the background, is the
nagging issue of who will look after the child when
he or she grows up.
Why
is it then that each of the children will not get a
similar deal? In the first instance, a successful
medical negligence case might yield enormous
compensation. In the second, a driver's insurance
firm might pay up a considerable sum. And in the
third, a mere quirk of genetics or an illness would
not yield any money at all.
How
important these distinctions can be was made plain in
the case of Susan Loveday. After an exhaustive
hearing, Lord Justice Stuart-Smith ruled in the High
Court last week that the 17-year-old girl was
probably not damaged by the whooping cough vaccine
and so was not in the first category, entitled to
huge damages, but in the third and entitled to
nothing.
Susan's
case, which may now go to appeal, had every
ingredient of a medical negligence epic. Lawyers for
her parents argued that the vaccine had caused
irreversible brain damage and that the doctor who
administered it was at fault in doing so. Moreover,
in a ruling that the vaccine probably did not cause
the injury, the judge dashed the hopes of 200 other
families in a similar predicament.
Nobody
ever doubted that Susan needed help. "The plight
of many of these children is pitiable in the extreme
and no one can approach this problem without having
the most profound sympathy for them and their parents
who have to bear the burden of looking after their
handicapped children," said the judge.
What
was at issue, however, was liability rather than
need. As the Lovedays have found, proving a causal
link between a medical procedure and a particular
side-effect is almost impossible - no matter how many
people are involved. Even in the Thalidomide scandal
this connection was never legally established and the
company was prevailed on to increase the compensation
only in the face of a hostile press.
Trying
to establish negligence by a doctor is barely less
daunting. Except in the most extreme cases, which are
usually about at subtle as cutting the wrong leg off,
the medical profession is not readily open to
challenge. Backed by powerful professional societies,
doctors can generally argue that they did their best
in the circumstances and in the climate of expert
opinion.
But
in Susan's case, there seems a clash with common
sense. Everybody knows there is a rare association
between the whooping cough vaccine and severe brain
damage. The government has established a modest fund
to help vaccine-damaged children and even the judge
said last week that the injection Susan received may
have "triggered" her problems.
In
the US, this common knowledge has led to
vaccine-damaged children being awarded enormous sums.
Legal differences mean that in America it is juries,
not judges, who make the awards, and seeing the
plight of a small child, few are sufficiently
heartless to deprive them of the cash. Lawyers also
work on a commission basis and the cases can go
through fast.
But
the results of this arrangement are not unreservedly
good. As US drug companies and doctors attempt to
recover the costs of litigation, treatment fees have
become a cripplingly heavy cost. Moreover, it has led
to the rise of "defensive medicine",
whereby obstetrics and other higher-risk procedures
are shunned by a medical profession fed up with
facing lawsuits.
No
sensible person would want to import such a state of
affairs. What we need in Britain is a way of
separating the needs of a handicapped person
from the attribution of blame. Some countries,
notably New Zealand and Sweden, have already devised
such an arrangement, and Susan's tragic case shows
why we should have it here.
In
those countries, instead of having to spend years
going through the courts to prove that a product is
dangerous or that a doctor was negligent, people who
believe they were injured can ask for independent
assessment. This system of "no-fault
compensation" can produce all the financial help
they need, without litigation.
Already,
the British Medical Association and organisations
representing patients say they would support such a
scheme. But because running it would mean setting up
a multi-million pound government or private insurance
scheme to pay for the awards, there is little chance
of any move towards it soon.
Even
if such a scheme did go ahead, it would do nothing
for two out of our three identically damaged
children. Only a properly funded welfare system that
takes account of all the many special, and
undeserved, problems faced by disabled people and
their families could really be described as justice
for injured children.
But
if a "no-fault" insurance fund for the
likes of Susan Loveday is deemed too expensive for us
to bear, it is easy to see why we don't award money
to everyone in need. We have decided as a nation that
children like her should be deprived of help - and
when cases like Susan's come before the courts we
might think about this embarrassing meanness, instead
of trying to dump the blame at a family doctor's
door.
|
brian deer |
And then, ten
years later, the real story about the DTP-DPT vaccine is investigated by
Brian Deer in The Vanishing Victims
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