Medical practitioners have a tougher time under the law than other defendants. But Governments should not cave in to all their demands just because they behave like blue-singletted yobs on the waterfront threatening to withdraw their labour unless they get it all their own way – as they are in the ACT at the moment.
The heat has been turned up in the ACT, because Jon Stanhope is the only state or territory leader to consider victims’ rights more carefully in medical negligence as well as road and workplace injury. All other jurisdictions have put in place legislation that severely cuts vicitms’ compensation rights. They have been led by that most knee-jerk of Premiers, Bob Carr in the NSW.
Stanhope’s proposals are more balanced. He is not going to put an arbitrary cap on damages. Good. He is not going to take away children’s rights. Good.
However, doctors do have two reasonable gripes about their liability which need attention: the long limitation time and the test for medical negligence.
The doctors argue that it is unfair that their liability can hover for more than 24 years after a medical event.
AMA president Dr Bill Glasson says doctors could be sitting in their rocking chairs with a catheter years down the track wondering if they might be sued.
In fact the same law applies to doctors as everyone else. It just operates more viciously on doctors. The standard law is that a person can sue in personal-injuries cases for up to six years from when the action first accrued. In the case of children that is six years after they reach 18. The medical event might have happened when the child was a foetus. So there is a long lead time. Doctors are more vulnerable than other professionals against whom exactly the same law applies because children form a greater portion of their practices than, say, the practices of lawyers or architects. Moreover, the potential for catastrophic injury is greater.
But this exposure is tempered by other factors. Usually, when a child is injured through medical negligence, the parents sue immediately. They want the cash to look after the child. So cases of uncompensated children awaiting their majority are rare. Doctors are overstating their exposure in future years. Nonetheless, the parents might not sue for all sorts of reasons. The child cannot sue without a parent or guardian, so the child’s right to get over his or her parents folly or negligence in not suing only arises at age 18. It is an important right and should not be taken away by legislation. It can be dealt within other ways.
Insurance can deal with these late cases. Most lawyers’ and motorists’ insurance, for example, is not restricted to claims made during the currency of the policy. Say I injure someone on the road today and two days later sell my car, cash in the insurance policy and never drive again. The claim comes in a month later. The now extant policy would still cover it.
Doctors’ insurance should similarly cover future claims. The Government should pick up the tab if the insurance policy goes broke.
True, these long lead times are part of the reason insurers are putting up their premiums. But there are other factors in increased premiums, particularly the fact insurance companies are not making as much money on their other investments. Moreover, axing children’s rights and victims’ rights in general will not necessarily bring premiums down. Insurance companies grab whatever they can get.
The other legitimate gripe for doctors is the way medical negligence law has developed in Australia.
The critical test for medical negligence (at least until 1992) was whether the doctor followed standards accepted at the time by a responsible body of medical opinion, even if other doctors might disagree with the practice. It was a peer-reference test. It had the advantage of being reasonably testable with evidence, and it was objective. It would not permit bad or outdated treatment because you had to get a responsible body of opinion to agree that the practice was accepted. If the practice was proved to be bad, no RESPONSIBLE group would adhere to it. The test allowed for reasonable and responsible difference of medical opinion without an automatic finding of negligence if the treatment did not work.
This test was laid down in England in 1957 in Bolam’s case. Bolam underwent convulsive electric shock treatment and sustained a broken pelvis. Medical witnesses said the treatment was standard fare so there was no negligence. Some state courts in Australia refused to follow the reasoning. And in 1992 the High Court refused to follow it in Rogers v Whitaker.
In that case the court said there was one rule for diagnosis and treatment and another rule for informing and advising. When informing and advising, a doctor could not rely on the peer-practice test. In this case, the doctor failed to warn a patient of the extremely remote chance she might lose the sight of her remaining good eye in an operation to restore the sight in the other eye. She was blinded. It was accepted that the doctor was not negligent in carrying out the operation. But in a judicial rebellion against the doctor-knows-best approach, the court held that the doctor was negligent in not warning her, even though all the medicos who gave evidence in the case said they would not have thought the warning necessary.
The consequence was the doctor’s insurance company had to pay out full damages as if the doctor had been negligent in the operation, even though the operation had been done properly.
In a later case when a doctor did not warn of a remote risk, the doctor who performed the operation without negligence was still held liable even though the patient would have needed the life-saving operation before long anyway.
But all means let’s have a rebellion against doctor-knows-best, but let’s not turn it into a legal test with huge financial ramifications.
In 1999, the High Court extended the rejection of the peer-practice test to treatment and diagnosis as well. In Naxakis v Western General Hospital, a boy who had been hit in the head by another boy with a schoolbag was admitted to hospital and was discharged a few days later after an apparent recovery. Some days later he got bleeding on the brain and brain damage resulted. All the medicos giving evidence said they would not have ordered an angiogram in the circumstances. The angiogram would have picked up the internal bleeding. But does every doctor order every test under the sun even if the patient has seemingly recovered? What about the cost?
What is a doctor to do? He or she can follow best practice and still get done for negligence.
In place of peer-practice, the court put up a reasonable-care test coupled with common sense. These are difficult fopr doctors to comply with.
These developments in the legal test for medical negligence have posed major difficulties for doctors. The biggest difficulty is that they cannot be turned around easily by common law because they are embedded in the legal tests and reasoning. They either have to be insured against or legislated against.
This is different from other areas of negligence where we are seeing the courts use the same legal test for negligence but more frequently finding against plaintiffs. The courts no longer give damages to people who drunkenly chunder over bridges, dive into shallow water or do not look out for bumps in the pavement.
So there is cause for looking at the legal tests for medical negligence, but not a wholesale attack on the level of damages or any reduction in the pre-1992 negligence tests – as the docotrs in the ACT seem to want.
Having an operation is a risky business. If every adverse outcome results in an award of damages, premiums will be very high and passed on to patients or copped by the doctor.
But the danger of going too far in capping damages and limiting liability is that society has to do something for those who miss out. And therein lies the real problem. While social security and public provision and subsidy of services are being cut with privatisation and corporatisation, the lifestyle of those injured without compensation or low compensation gets more desperate. The difference between those compensated with large damages and those who rely on the state gets ever bigger. So the incentive to sue is higher. And the judges, seeing the difference, have, until recently, got more sympathetic to plaintiffs, thinking that an insurance company will pay. Only recently, since insurers priced lots of worthwhile public activities out of existence, have judges tightened up a bit. That tightening up probably has some way to go and will happen without legislation.
So, yes; let’s listen to the doctors, but Stanhope is right not to let the pendulum swing back too far.