Medical Malpractice and the Medical Innovation Bill
The Medical Innovation Bill, often referred to as the Saatchi Bill, had the potential to be the biggest change to medical malpractice law that many would have seen, but it was met with reluctance and hesitation. The bill reached the final stage before royal assent, however Parliament extended it and the bill did not go any further. We then saw Chris Heaton-Harris rename it the Access to Medical Treatment (Innovation) Bill which sought to get it through the House of Lords as a private members’ bill. Again, the parliamentary session ended and the bill did not go forward, but he raised the question of whether we needed this bill.
The bill referred to the reasonableness test that all doctors must currently adhere to under the Bolam common law test, which Bolitho added later. All doctors are subject to this test if they are faced with a medical malpractice lawsuit. To pass the test, the doctor must demonstrate that he has acted in accordance with a practice accepted as proper by a ‘responsible body of physicians’. This test was derived from Bolam and was heavily criticized for allowing doctors to escape straight. Bolitho modified the medical malpractice test slightly, in that the doctor must now also provide a logical explanation for his disputed actions. These medical malpractice tests are often criticized because they lead to an overly cautious medical body of physicians, who are reluctant to try alternative treatments or “off-the-shelf” treatments for patients, fearing a medical malpractice lawsuit, thus that some shared the belief that new legislation should be implemented to allow doctors to avoid medical malpractice lawsuits when acting in good faith.
The new bill would have allowed the Secretary of State for Health to create a database of medically innovative treatments. The database was set up to contain both success and failure records of physicians using the listed innovative treatments.
Additionally, the bill would allow a doctor to deviate from standard practice if they could show that they had acted responsibly. In some ways, the bill can be shown to adhere to the old ‘Bolam’ test, in that it would set out a series of steps that doctors can take to show evidence that they are not guilty of medical negligence. One of which is to obtain evidence from a ‘responsible body’ of medical opinion, who agrees with the doctor’s actions and does not think he was acting ‘irresponsibly’. The bill was not intended to replace current medical malpractice tests, but rather to provide an alternative means for doctors to evade medical malpractice liability when they have deviated from standard practices.
A common argument made by opponents of the Medical Treatments (Innovation) Bill is that they fear it would allow doctors to test experimental treatments, when an effective treatment already exists. This argument seems somewhat limited, as it is unlikely that the doctor could show that this was actually “acting responsibly”. There seems to be a lack of balance between both sides of the medical malpractice scale, those doctors who yearn for the chance to deviate from standard practice but are reluctant to do so for fear of a claim, and the public who fear this bill will lead to to more negligent treatment and an irresponsible medical profession. Both medical innovation bills failed, but it seems somewhat inevitable that this bill will come up again soon.