Reprint

When need outweighs blame

The Sunday Times
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 as 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.