The surprising origin of medical defence

Many weird and not-so-wonderful stories punctuate the history of medicine in the UK over the last 200 years: from bloodletting to Victorian mesmerism and a complete lack of hygiene to the infamously speedy surgeon Robert Liston[1], who once removed a patient’s testicles during a leg amputation.

Until the passing of the 1858 Medical Act, there was no legal definition of a qualified medical practitioner in the United Kingdom.

Physicians, barbers and apothecaries, alongside out-and-out quack doctors, were consulted by the ill and infirm, depending on how much money they could spare. In 1841, less than one-third of all those practising medicine in the UK were qualified to do so.

The lack of a legal definition did not mean that those practising were immune to prosecution. As medicine and dentistry became more complex, so did the cases brought against those dispensing health care. It was time for doctors to get organised.

The first lawsuits against medical practitioners

The first case of medical negligence commonly referred to in the UK dates back to 1828[2] and involves a messy entanglement with the press. It all started as a defamation case against a journalist, who reported that one Bransby Blake Cooper had butchered a patient during a gall bladder stone removal. At some point in the proceedings, the court needed to establish whether Cooper was, in fact, incompetent. For those of you who are curious, he was cleared.

Throughout the latter half of the 19th century, the professional status of medicine and dentistry continued to evolve. With the new possibilities came new expectations from patients – and the potential for disappointment grew accordingly.

In 1883, a leading article was published in the British Medical Journal that voiced the concerns in the medical profession over what they saw as frivolous and unfounded allegations of malpractice.

Entitled ‘Vexatious Prosecutions of Medical Men,’ it highlighted a charge of manslaughter brought against two English doctors following the death of a child in their care. The charge was dismissed by a magistrate who characterised the case as one of "persecution not prosecution".

[2] https://mcna.com.au/the-first-case-of-medical-negligence/ Also https://www.bluegrassjustice.com/famous-medical-malpractice-cases/

The beginning of medical defence

Soon after, there were moves to offer financial support to fellow physicians subjected to such claims.

Practitioners saw that they could find themselves in the same position at any moment. They felt that the claims, which had become far from isolated incidents, were often “animated by malice or based on frivolous pretence” and potentially of a “ruinous nature”.

Local, informal groups started gathering to pay a subscription that would help offset the hefty legal expenses, should any of them find themselves in such a quagmire.

How MDDUS was born

Meanwhile, in Scotland, a case brought before the Edinburgh Court of Session in 1901 focused practitioners’ concerns about their vulnerability in the face of potential lawsuits.

It all started with a case of a finger scratched by a rusty nail. The patient, a provisions merchant by the name of John Farquhar, was diagnosed with erysipelas by Dr Donald Murray of Leith, who prescribed a linseed and oatmeal poultice.

Dr Murray then went on holiday. The finger got worse, and another doctor, who declared not to have been left word of the patient, was sent in his place. He found that the finger had been poulticed too much and changed the prescription. Things went from bad to worse, and the finger had to be ultimately amputated.

Understandably, the patient wasn’t happy. He sought damages against Murray, whom he accused of negligence.

Despite an initial dismissal, two of the three judges presiding insisted on investigating the allegation. Ultimately, the case was disposed of.

What shocked the Scottish medical profession was not the suit as such, but the mood of the proceedings. As the third judge said at the time: “This action is certainly one of a particularly unusual character. It is an action of damages against a medical man. In my somewhat long experience, I cannot remember having seen a similar case”[3]. Times were changing.

Against this background, in May 1902 the Medical and Dental Defence Union of Scotland (MDDUS) was formed. Its founder members were nine doctors and one dentist, making it inclusive from the beginning of both the medical and dental professions.

The need at this time for a specifically Scottish defence union was in large part due to important differences between Scots and English law. It proved popular: by the end of its first year, MDDUS membership had risen from an initial 26 practitioners to 539.

[3] https://qualitysafety-bmj-com

The first MDDUS case

The first true medico-legal case presented to the MDDUS was that of a general practitioner, Dr John Cunningham, who was being sued by the wife of one of his patients.

Read also: 4 curious Firsts in the history of the Medical and Dental Defence Union of Scotland

Mrs Margaret Gillies claimed that her husband had died as a result of Cunningham’s negligence when he performed a procedure under chloroform anaesthesia in their home.

Despite initial work on the case, MDDUS quickly discovered that the doctor in question had only applied for union membership on the same day that he had received notice of the action against him. The patient’s death had in fact taken place months earlier.

MDDUS covers members for any incidents that happen during their membership, even after their membership ends. But because Dr Cunningham had not been a member when the incident happened, MDDUS had to cease its formal involvement with the case.

Upholding standards

Since that modest start, MDDUS has grown in stature and reach. It remains true to its original ideals of medical defence which, as one former MDDUS chief executive has stated, should be "neither passive nor protectionist".

All medical defence unions have a responsibility not just to safeguard their individual members but also to uphold the standards of the medical and dental professions.

A lot has changed in the practice of medicine and dentistry over the last 120 years. However, what has remained constant is the need for professional protection from expensive lawsuits.

As the first convener of the MDDUS Council, Dr RW Forest, reminded those at its inception, “such claims are made when they are least expected and deserved".

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This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.