I had to return to London from Nepal earlier than I had originally planned because I was due to appear in court. A patient was suing me. The case had been dragging on for four years. I had operated for a complex spinal condition causing progressive paralysis, and the patient had been initially left worse than he had been before the operation. As far as I could tell he had eventually ended up better than before the operation, but apparently he was deeply aggrieved. A neurosurgeon – justly famous for the very high opinion he had of himself, although less famous for his medico-legal pronouncements – was of the opinion that I had acted negligently. Just for once, I was as certain as I could be that I had not, and I had reluctantly felt obliged to defend myself. It was just like Nepal, I thought. All these surgeons attacking each other. I had had to attend various meetings about the case and many thousands, probably hundreds of thousands, of pounds must have been spent in legal fees. At the last moment, after I had come all the way back from Nepal, the claimant and his lawyers abandoned the case two days before the trial was due to start. The solicitor handling my defence was most apologetic about the waste of my time.
‘But it’s better than needing twelve policemen,’ I replied cheerfully, without explaining what I meant.
Many doctors do what is called medico-legal work, providing reports for lawyers in cases involving personal injury or medical negligence. It is a lucrative but time-consuming business. I did a few such reports myself when I became a consultant, but quickly gave it up. I preferred operating and dealing with patients to the many meetings and lengthy paperwork which medico-legal work requires. I only became involved with lawyers if I was being sued myself – always a very distressing experience, whether I felt guilty or not.
This occurred four times during my career, including the case which had forced me to return from Nepal and which had now collapsed. The other three cases had all been settled, as I blamed myself for what had happened and did not want to defend myself. One case had been for a retained swab after a spinal operation (in the days when swab counts were not being done in the old hospital) which had not caused any severe injury, and the other two were cases where I had been slow to diagnose serious, although almost uniquely rare, post-operative infections. One of those patients had come to serious harm, the other to catastrophic harm.
But a few years ago I was subpoenaed to give evidence in a personal injury compensation case, which I regarded as an absurd and complete waste of my time. So I attended reluctantly, a series of High Court orders having been served on me over the three days before the hearing. The men serving them had never been able to serve them on me in person – which, strictly speaking, I believe the law requires. The first attempt had been made while I was operating and the second when I was away from London the following day. I returned the following evening to find that a copy of the order had been pushed through the letterbox of the front door of my home. I was operating the day after that until the evening, and came out of the theatre to be told that earlier in the morning a man had walked up to the hospital reception desk and had thrown down yet another copy of the High Court order in front of the receptionist and then stalked off.
This barrage of court orders had been unleashed upon me by a solicitor in a huge City law firm which was acting on behalf of an American law firm, which in turn was acting for the defendants in the compensation case.
An English woman had been involved in a minor car accident in the USA while on holiday, and had subsequently seen me as a patient about her ‘whiplash’ symptoms. I had confirmed with an MRI scan that there were no significant injuries to her neck and reassured her that she would get better in time. In practice it is not at all clear whether these whiplash syndromes do get better. Patients develop an array of aches and pains and altered sensations in their necks and arms which do not correspond to any known pathological processes such as bone fractures or torn muscles or trapped nerves, and do not spontaneously improve in the time it takes most proven ‘soft-tissue’ injuries to heal and become painfree. It is well known that these syndromes do not occur in countries which do not have any legal recognition of whiplash injury as a consequence of minor car crashes.
The particular type of accident which is alleged to produce ‘whiplash injury’ is a ‘shunt’, when a car is driven into from behind by another car. These are typically low-speed accidents, where the driver or passengers are subjected to relatively slight forces, never enough to cause any obvious injuries, but which seem to produce severe and lasting symptoms without any evidence of injury such as bruising or swelling or changes on an X-ray or MRI scan. It has been pointed out that driving dodgem cars on fairgrounds involves near-continuous shunting as the cars are deliberately driven into each other, and yet there are no reports of whiplash symptoms afterwards. This discrepancy between the severity of the symptoms and the apparent triviality of the injury has been attributed to a putative ‘whiplash’ effect. The victim’s neck is supposed to be cracked like a whip – something that has never in fact been demonstrated and is probably fallacious.
I used to see many of these patients every year in my outpatient clinic and it was clear to me that most of them were not consciously malingering – instead they were the willing, perhaps hapless, victims of a ‘nocebo’ effect, the opposite of the placebo effect. With the placebo effect, which is well understood, people will feel better, or suffer less pain, simply as a result of suggestion and expectation. With ‘whiplash injury’, the possibility of financial compensation for the victims, combined with the powerful suggestion that they have suffered a significant injury, can result in real and severe disability, even though it is, in a sense, purely imaginary. They are more the victims of the medico-legal industry and of the dualism that sees mind and brain as separate entities than of any physical injury outside the brain. It is the modern equivalent of the well-attested phenomenon of a witch doctor in tribal society casting a spell on somebody, causing the victim to fall ill, merely through the power of suggestion and belief. There was a further significant irony in this case, which I had mentioned in my original letter about the patient: the victim’s husband was a lawyer specializing in personal injury compensation.
I had been given only two weeks’ notice about the hearing – strictly speaking, the ‘deposition of evidence before a Court-appointed Examiner’. I was told that I was required to attend but there was no mention of legal compulsion. My secretary had told the woman solicitor who had sent the letter that I could not attend as I was already committed to operations and outpatient clinics. As I had heard nothing more after my secretary had told the solicitor this, I had assumed that it had been accepted that I would not be coming. It seems that the solicitor, however, decided that I needed to be taught a lesson and served me with the court order. I had some urgent cases to do, which could not be postponed. I therefore started operating at seven in the morning on the day of the deposition, at high speed, something I hate doing; nor had I slept well, as I was angry that I was being dragged away from my work in this way.
I was not going to be paid, but doubtless the lawyers would be paid hundreds of pounds, probably thousands, for trying to extract a medical opinion from me for free. I knew the business would be absurd – I had seen the patient only twice, four years ago, had no memory of her whatsoever, and the lawyers already had copies of my correspondence. I clearly would have nothing to add. So I was angry, and had already telephoned the solicitor the day before and told her so.
The law firm’s offices were housed in a huge postmodern marble and glass office block just beyond the Tower of London. I marched into the building full of righteous indignation, past the men in suits smoking cigarettes on the piazza outside, and clutching my folding bike and attaché case. I collected a laminated visitor’s pass from a receptionist in a smart uniform, pushed past the barricade of the revolving stainless-steel turnstile and ascended to the seventh floor in one of the many tall, swift lifts lined with dark mirrors. If only my hospital had such lifts – how much time it would save!
I emerged into a three-storey-high atrium, walled and floored in marble, even though already on the seventh floor. High plate-glass windows showed a panoramic view over the City towards the Lloyd’s Building and the various high and imposing office blocks around it. Having announced myself, I had to wait for a while, and looked with sour awe at the City under a clear blue sky. Babylon! I thought – the heart of an extravagant culture, consuming itself and the planet, sheathed in glittering glass. A slim and polished barrister in a light-charcoal pinstriped suit, the Court-appointed Examiner, descended the elaborate glass, steel and hardwood spiral staircase at one side of the atrium and introduced himself. He was, perhaps, just a little apologetic and thanked me for coming.
‘I am not pleased to be here,’ I growled.
‘Yes, so I heard,’ he answered politely.
He led me to an anonymous, luxurious and windowless meeting room, the furniture all in white ash and chrome, where the English QC for the plaintiff and the American lawyer for the defendants were waiting for me. The American lawyer was in his fifties and was fit and trim, with short grey hair and a designer sports jacket. The elderly English QC, however, did not look as though he worked out in a gym every day and was rather overweight, with a florid face, and wore a crumpled white linen suit and half-moon glasses.
‘Good morning gentlemen,’ I said as I entered, feeling a little superior, knowing that they were not going to get anything out of me. I sat down and after the introductions a man with a video camera read out, in a bored voice, the description of the proceedings. I was sworn in (I affirmed rather than swore on the tatty little Bible on offer) and briefly cross-examined. This could only mean that I could agree that the notes I made four years ago were indeed mine and that I had no memory of the case. The American lawyer, of course, wanted to extract my opinion about whiplash injury, but I refused to be drawn.
‘It is a medico-legal question,’ I said, ‘and I therefore have no opinion. I never give medico-legal opinions over personal injuries.’ Whether they heard the disdain in my voice or not, I do not know.
I had seen the patient and had advised against surgery. The English QC wanted me to agree that if her symptoms had not got better as I had said they probably would, it was reasonable for her to seek a further opinion. I agreed that it was.
‘Did you know,’ the American lawyer then asked, ‘that she did eventually undergo surgery on her neck?’
‘No,’ I said.
How much I could have said! I had affirmed that I would tell the truth, the whole truth and nothing but the truth, but not that I would not be economical with it. I could have explained the psychosomatic nature of whiplash injury, the nonsense written about the alleged mechanism, the fact that all the neurosurgical textbooks state that one should never operate on the spine of somebody involved in compensation litigation. They never, ever get better. Some greedy surgeon must have operated on her neck and now, most probably, her symptoms were even worse and the lawyers would be arguing over whether her disability was the result of the original trivial injury or the operation. I could have told the lawyers that they themselves were more responsible for her problems than the original minor car crash. The principal consequence of that trivial accident, and the millions of other ones like it, was not just the plaintiff’s pain and suffering, but also the Babylonian marble offices where we were now meeting. The humourless men seated round the table before me were part of the great industry of personal injury compensation, with its army of suave and accomplished lawyers and assured expert witnesses, rooting in a great trough of insurance premiums.
At the end of the meeting the American lawyer went through my CV, which he had in his hand. His face was impassive but he seemed a little puzzled by it. I am rather proud of my CV and academic record, and I thought that perhaps he too would be impressed by it and would be arguing that since an English surgeon with such a brilliant CV had advised against surgery, the operation carried out by somebody else could not have been a good idea.
‘How did you get all those prizes at college?’ he eventually asked.
‘By working very hard,’ I replied, feeling deflated. He remained expressionless – perhaps he was just bored and wanted a little distraction – but the English QC smiled.
And that was that. The video camera was switched off and the Examiner thanked me for coming.
‘Well, I’ll get on with my day,’ I said. I descended the spiral staircase, collected my folding bike from the reception desk and left.