Abstract
Diana Brahams writes
Looking back in time – was the surgeon negligent?
When I was still a Bar student, a friendly solicitor arranged for me to ‘sit in’ on a case conference with counsel and client. It was a claim for ‘medical negligence’. Claims of this kind were less common in 1972 so it was a stroke of luck for me. Indeed, as ‘the past is another country and they do things differently there’ (The Go Between by L P Hartley), I will provide a little, relevant historical context. At this time, firms of solicitor and barristers sets were smaller and most litigation practitioners took on a wide variety of cases. Most lawyers and doctors, and certainly the most senior lawyers and doctors, were (white) men. Women lawyers mainly practised in ‘Divorce and Crime’ where divorces had been contested until this point. New laws had removed ‘fault’ and permitted divorce by ‘consent’ within limited time constraints, later expanded. The UK had a large mining and heavy industry sector which generated a flow of work related accidents, which, when added to injuries, loss and damage from traffic accidents, comprised the bulk of legal claims for personal injury. As clinical negligence claims were relatively few most lawyers representing plaintiffs had far more experience in dealing with accident claims than with defendant doctors and hospitals, with most iatrogenic injuries the by-product of an accidental injury elsewhere. While there is a large overlap in a lawyer’s knowledge and skills needed to assess the type and extent of an injury suffered and in quantifying pain and suffering, loss and damage. However, there are some differences between accident claims and clinical negligence procedures and this could put the more generalist lawyers at a disadvantage when confronted by the specialist team retained by the defence organisations. The prevailing lax rules on ‘discovery’ (now disclosure) were a particular problem and indeed, one High Judge angrily complained he was being asked to deal with a trial by ambush with new evidence being sprung on the court. Further, while plenty of medical ‘experts’ were willing to advise on a claim for a work or traffic accident injury, only a few of them were willing to assist with a claim against another doctor or a hospital and of these many of them were (too long) retired. Add all this to the expense of even preliminary investigations and then the daunting prospect of losing your claim and having to pay the defendant’s legal costs as well as your own (unless, of course, you had the support of legal aid). In consequence, few privately funded litigants dared to take this costly gamble – and legal aid was only available to people with low incomes and minimal savings. Conditional fee agreements did not exist and indeed would not have been permitted.
With the Bolam ruling still supreme, the Law was reasonably clear in principle, if not always in practice and; claims based on a lack of informed consent were difficult to win.
So it was, that some 50 years ago, I arrived at the Temple. to sit in the waiting room with a young solicitor (about 5 years call) and his nervous client, a small, thin man with a whiny voice and a North London accent, whom I will call Mr H. When a middle-aged man arrived, the four of us were taken to counsel’s room. Counsel was in his mid-forties, with a public school manner and a voice to match. He remained behind his desk as the four of us took our chairs to face him. My chair was a little behind the other three as I was there as ‘a fly on the wall’.
The middle-aged man who joined us in the waiting room was the ‘expert’ consultant orthopaedic surgeon, (Mr O) who, rather casually explained that he felt he should mention something as he could be perceived as having perhaps a very slight conflict of interest. He explained that he and the allegedly negligent defendant doctor (Mr D) were members of the same golf club. He added that although he did not know Mr D well they had played an occasional round of golf together. It would make absolutely no difference to his advice in this case but he would understand if Mr H would prefer to instruct a different consultant.
I was shocked and waited for a response from our learned counsel who did not however, seem unduly concerned by this extraordinarily late admission of a significant potential conflict of interest. Had he been tipped off by Mr O a little earlier? Was Mr O advising on some other personal injury cases counsel was handling? Or was he too, a member of this golf club? Instead of offering advice he turned to Mr H and his solicitor, saying something to the effect of: “Well, how do you feel about this? Mr H, it is really up to you to decide, because it is your claim and your case. You have the option of obtaining an alternative expert opinion or you can go ahead and accept Mr O’s advice? He has assured us that knows Mr D, very slightly, but that it will make no difference to his opinion - and I am sure that he will be fair, but it must be your decision Mr H - because it is your case.
Mr H, flustered and embarrassed looked for further guidance from his legal two advisers. His solicitor, obviously taken completely by surprise, and wrong-footed, was, I’m sure, outside his comfort zone. He did not probe Mr O’s reasons for this very late admission and echoed what counsel had said: ‘The decision has to be yours, Mr H’.
But this should not have happened and this appalling late admission of compromise should have been challenged.
I, being only a student, and there on sufferance, had to remain quiet, and I did, but I was very troubled by it and I asked myself then, and still ask myself now, why was this allowed to happen? Why did Mr O wait right until he was inside the conference room with the client to own up to a potential conflict of interest? When had he first realised this could be a problem? Only that afternoon? Most unlikely! He would have been sent the papers weeks before and the Defendant doctor’s name was in the very title of the case and written in bold letter on the outside cover of the bundle sent by the solicitors. The defendant’s name would also be at the top of the first page of his instructions and then scattered throughout the medical notes. Was Mr O so busy, or so casual, that he had only looked at these papers for the first time a few minutes before this conference? If yes, then he had certainly not spent long considering the merits of the case. But, suppose Mr O had looked at his instructions well before the conference with counsel? Why had he stayed silent until the very last minute? Was this a ploy to get his golfing pal off the litigation hook? If they were members of the same golf club, they probably lived quite near each other and perhaps worked in neighbouring hospitals?
After some hesitation, and no doubt mindful that he would be expected to pay at least some of the wasted costs if the conference was aborted, Mr H agreed to accept Mr O’s advice. He explained that as a ladies’ hairdresser he had to be on his feet for hours at a time for much of the working week and increasingly, he had been suffering from pain in his leg so that standing for long periods had become very difficult. He was self employed and he had to keep working to pay the bills and he had therefore paid for a private consultation with Mr D, a consultant orthopaedic surgeon, who had recommended surgery to relieve his leg pain. Alas, the operation had not been successful: he was in more pain than ever and unable to stand for long periods – and worse still, following this operation, his leg had become permanently ‘bowed’. It looked as if he had spent his life on a horse. Mr H then raised his trouser leg and showed us all his distinctly bowed leg.
Mr O’s response, while mildly sympathetic, was firmly negative. The operation was reasonable and the medical notes did not indicate anything less than appropriate care. I am sure that Mr O gave us some sort of explanation of why and how Mr H’s leg had become bowed but I don’t remember it.
Before leaving chambers, I called in at the clerk’s room to thank them for ‘having me there’ and added that I was very interested in personal injury law.
The clerk’s response was blunt to the point of rudeness: Don’t you start getting any ideas. We’ve never had a woman in these chambers and we aren’t starting now - and that’s flat! (I later became a pupil in Chancery Chambers.)
Eleanor Jane Turner writes
Diana’s 1972 account demonstrates how professional relationships can occasionally become intertwined with more casual associations, such as shared golf memberships, which may lead to withholding necessary disclosures. Although this example pertained to expert witness conduct, similar dynamics, such as loyalty and reluctance to disrupt collegial harmony or challenge the status quo, remain prevalent in contemporary clinical practice.
Collegiality and professional harmony hold significant value in medical settings. Clinicians appreciate supportive relationships that facilitate open discussion of challenging cases, provide opportunities for guidance, and foster both formal and informal assistance among peers. High-pressure, stressful environments are often more manageable when colleagues collaborate and share the responsibilities of complex decision-making, as seen in multidisciplinary meetings or during demanding on-call periods. Collective decision-making and structured multidisciplinary practices serve as essential safeguards in medical care, particularly in areas like cancer treatment. Teamwork offers avenues for support and mentorship, particularly during complex clinical tasks, and is most effective when team members are united by a shared purpose. Even highly experienced clinicians depend on their consultant peers, as few operate completely independently. Effective teamwork is built on mutual trust and respect; however, this collegial environment can sometimes inhibit individuals from initiating difficult conversations or expressing concerns, as most professionals seek to avoid conflict. Many clinicians recognise the discomfort of raising concerns with a colleague. The unease itself shows how much pressure there is to remain silent. It can be incredibly isolating being the first person taking that step, as that person is effectively carrying the weight of what others might be recognising but choosing to remain silent over.
Diana Brahams recounted an incident from decades ago in which an expert witness was found to have a conflict of interest at the last minute. Although she refrained from commenting on possible motivations, the timing of this revelation placed the client in a challenging position. In the present day, increased regulation, governance and expectations for transparency have been established. Nevertheless, certain aspects remain unchanged. Team dynamics play a significant role in determining clinicians’ comfort with expressing concerns, as professional disagreement may be interpreted as disloyalty. Hierarchical frameworks impact individuals’ inclination to speak up, irrespective of seniority. Even among consultant groups, considerable pressure to conform may exist. Consultants depend on each other for continual mentorship, guidance and second opinions. Maintaining this collaborative environment becomes challenging when relationships are strained; nevertheless, it is essential that senior clinicians offer mutual support despite interpersonal conflicts. Newly appointed consultants are especially susceptible during their transition to independent clinical practice, relying heavily on colleagues for mentorship and guidance. These challenges are further heightened for those serving in locum consultant roles. A constructive way forward is to ensure support between consultants rests on clear timetabled support structures rather than informal goodwill. When collaboration, shared discussions and mutual oversight are routine expectations it becomes easier to raise concerns without fearing that support could be withdrawn.
The Paterson Inquiry showed that senior colleagues had concerns about breast surgeon Ian Paterson’s ‘cleavage sparing mastectomy, unnecessary surgeries, poor follow up and poor documentation’. However, while some consultants spoke informally to him and were aware for years, they did not escalate due to collegial discomfort, organisational inertia and hierarchical problems. The Paterson Inquiry demonstrated that silence is not confined to junior grades. Many consultants had recognised that aspects of his practice were unsafe. Loyalty to a colleague, deferring to the senior in the department and the wish to avoid conflict contributed to years of avoidable harm. 1 The Francis Inquiry revealed how fear of speaking up at Mid Staffordshire enabled years of problems and this resulted in avoidable harm. Staff did not raise concerns as they felt they would not be supported by management and stayed quiet about falling standards rather than speaking out or challenging colleagues. 2
The GMC National Training Survey 2025 (reporting on data from 2024) 3 introduced a new question derived from research by Barton et al., 4 which identified a direct correlation between the safety of escalation practices and mortality rates. Of concern, the survey revealed that 21% of trainees expressed hesitancy in escalating a patient to a senior clinician, an issue that could compromise patient safety. This hesitancy was notably higher among those in surgery (29%), obstetrics and gynaecology (27%) and emergency medicine (26%), specialties that also reported elevated levels of incivility.
There have been several studies demonstrating that bullying, undermining and hierarchical behaviours are common in surgical environments, including work by Bracken et al.5,6 These behaviours create a culture where trainees and consultants may remain silent to protect team relationships and harmony rather than speaking up. Studies such as these reinforce the patterns seen in the GMC National Training survey and may explain the hesitancy in escalating patients. Given the direct link to mortality, with hesitancy escalating sick patients, it seems imperative that Trusts should prioritise creating psychologically safe environments.
The GMC National Training Survey noted issues around speaking up about problems in their working environment spanned the entire workforce, 30% of trainers saying they felt affected by rota gaps and 25% of trainees. Burnout and rota gaps contributed to less psychologically safe environments. The Bawa Garba case has previously shown how unsafe levels of staffing, rota gaps, pressured environments and unclear escalation structures can make it difficult for clinicians to get senior support. 6
The GMC survey demonstrates that there was a lack of confidence reporting poor working conditions, without fear of adverse consequences, for example 50% of female surgical trainees compared to 61% male surgical trainees. Demographic analysis showed that some doctors are not having the same training experience as colleagues because of their protected characteristics including gender, ethnicity, religion, sexual orientation and disability status. Protected characteristics also influenced whether trainees were excluded from meetings 25% of female surgeons being ignored or excluded from conversations groups or meetings, compared with 16% of males. 3 Doctors from minority backgrounds are less confident speaking up. This has been reflected in the GMC survey and in the Workforce Race Equality Standard. 7
According to the National Guardian’s Office Annual Speaking Up Report, 39% of reported cases were related to worker safety or wellbeing, with inappropriate behaviour and attitudes being the most frequently cited issues. The number of cases reported anonymously increased by 12%, representing a 45% rise compared to the previous year, the largest change among all categories. Staff expressed concerns about potential retaliation and exclusion when voicing issues, and this reluctance to speak up affects not only trainees but the entire workforce. 8
From the 1972 conference room Diana witnessed to today’s NHS settings, a persistent issue remains: professionals often stay silent when they should speak up or do so too late. Despite increased regulation and oversight, the GMC notes this problem persists, especially in certain specialties. Examples include delays escalating care for sick patients and marginalised doctors hesitating to report exclusion. Silence rarely is a reflection of the failings of one individual but is created by the wider environment. Speaking up must become a collective cultural norm rather than just an individual burden. Regulators should hold Trusts accountable for creating psychologically safe environments, trainees need education on challenging appropriately and senior clinicians should encourage open dialogue. Without safe ways to raise concerns, preventable harm will continue.
