I thank the readership of Anaesthesia for their interest and thought-provoking comments on my editorial [1]. Dr Ip queries whether there is any alternative to civil litigation, with its substantial legal costs, in compensating patients harmed by negligent acts. Some jurisdictions have considered this question and come up with no-fault compensation schemes. Although a sustainable model for such a scheme has arguably not yet been developed, it should not stop us from trying to devise a process that is rapid, low-cost, and that, critically, is not dependent upon finding fault before compensating individuals for financial loss resulting from their injury. With regard to Wooley and Roe, it may be that the subsequent fall-off in the use of spinal anaesthesia may have protected patients from what must be the very rare phenomenon of contaminated equipment, but surely this would have been greatly outweighed by the morbidity and mortality associated with the inevitable increased usage of general anaesthesia. I certainly agree that it is foolish to take actions based on erroneous or incomplete data (Sherlock Holmes –“it is a capital mistake to theorise before one has data”– would concur), but would argue that this is much more likely to happen in a court of law than in a peer-review journal. Dr Norman, in typically generous mood, comments positively on the ability of lawyers and judges to understand and assess scientific evidence; this may well reflect that he is more adept at getting the message across than me. My own experience is that, when a court decision is examined in the cold light of day after the emotion has died down, it does not always stand up to dispassionate peer scrutiny. I would, incidentally, strongly support his plea for a more structured process whereby lessons from civil litigation can be shared with the medical profession. I thank Dr Harrison for his thoughtful comments, but hope he never appeared as an expert before Cresswell J before 1997. Experts were indeed more likely to stray from their duty to the court before the Civil Procedure Rules, but that duty was no different to what it is today. The good judge took against one such individual in the Ikarian Reefer case (relating, rather disappointingly, to a ship that foundered rather than to a marijuana cigarette), and gave him both barrels with regard to his apparent bias towards those instructing him [2]. The principle of an anaesthetic consent form is well-recognised in many countries and jurisdictions, but has so far not taken root in the UK. The working party established by the Association of Anaesthetists of Great Britain and Ireland to update its guidance on consent in 2006 took advice on this issue and decided not to include it as a recommendation [3]. However, we did stress the need to ensure that the elements of a discussion between anaesthetist and patient were recorded, usually on the pre-operative assessment chart. While notes such as this are not formally signed by the parties, they have, to the best of my knowledge, never been successfully challenged in court. Dr Bogod has a medicolegal practice acting for both claimants and defendants. He chaired the AAGBI working party on consent for anaesthesia in 2006. Previously posted at the Anaesthesia Correspondence website: http://www.anaesthesiacorrespondence.com.
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Jan 1, 2016
Balavenkatasubramanian Jagannathan 
Open Access
