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Australasian society of cardiac and thoracic surgeons
Heart, Lung and Circulation 2002; 11: 197
Australasian Society of Cardiac and Thoracic Surgeons
The ASCTS Submission to the Federal Government on Aspects of the Medical Indemnity Crisis: The Litigation Process and Risk Management The Expert Witness It is essential that the expert witness is credible and submits intellectually objective and relevant evidence. Therefore, such a person must have: 1 Current practical experience in the matters being described. 2 Relevant specialist qualifications in the specific area. 3 Appropriate credentials in the legal and ethical responsibilities of an expert witness. This implies that a panel of expert witnesses is established, preferably sourced from within the medical profession in Australia. To ensure veracity and objectivity, that witness should be required to provide the scientific evidence which supports their contention. It is recognised that such scientific evidence is not permissible in court proceedings at this time, on the basis that neither the judge nor jury is able to assess such evidence. However, there are processes for assessing the power of scientific evidence that exist in the medical literature. One of these is a derivative of the Cochrane Collaboration, which classifies such information on the basis of the veracity of data supporting it. In summary, Class I evidence is based on properly designed, randomised studies, the positive conclusions from which are highly likely to be true, whereas Class IV evidence is essentially personal opinion. The introduction of such a process, insofar as it is applicable, would enable the court to place appropriate emphasis on the evidence presented to it. It is recognised that there are areas of evidence for which there is no scientific support, so that recourse to such nebulous concepts as ‘current practice’ is necessary. However, the introduction of the concept of the class of evidence referred to above would be a major forward step in obviating the vexatious problem of superficially credible but
scientifically baseless evidence so often presented in court at this time.
The Definition of Negligence The test applied by Australian courts at this time is that based on reasonable care. This term cannot be rigorously defined. It permits the injustice of judgement in hindsight by those who may not have any experience or understanding of the specific circumstances faced by the defendant. The defendant is therefore held to a standard which is only contentiously applicable or inapplicable to the circumstances pertaining at the time of the incident. The practical outcome of the current test is that the distinction between negligence and misadventure is blurred or absent. The ASCTS submits that a more rigorous definition of negligence should be applied, so that a clear distinction can be made between negligence (that is malpractice or incompetence) and misadventure (that is a recognised deleterious outcome or complication of a procedure). Legislation to establish the Bolam principle as the determinant test of negligence may be a solution to this problem. It provides that a medical practitioner is not liable for medical negligence if he or she acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion. The utilisation of the Cochrane Collaboration system as the practical application of such definition would lend it further credibility.
Risk Management The ASCTS endorses recent initiatives by the Royal Australian College of Surgeons (RACS) and indemnity insurance companies to encourage all members to attend courses available on this issue and seek further advice relating to minimisation of risk.
198
ASCTS
Heart, Lung and Circulation 2000; 11
Conclusions
Council of the ASCTS
1 The ASCTS submits that the solution of the medical indemnity crisis in Australia necessitates an approach which embraces the entire environment of medical indemnity. 2 We recognise the essential importance of reform of the insurance system. However, we would emphasise the critical importance of the more difficult task to reform of the legal system, involving complaint resolution, litigation and method of compensation payment. These matters were addressed in some detail in a document submitted to government by the RACS. 3 The ASCTS specifically raised concerns with two particular aspects of the litigation process, that of the expert witness and that of the definition of medical negligence. We hope that the suggestion made will receive favourable consideration.
President P. Skillington Vice-President J. Knight Immediate Past President A. Farnsworth Secretary of the Society G. Shardey Treasurer G. Matalanis Secretary of the Board of Studies J. Smith Chairman of the Board of Studies P. Brady Journal Editor F. Rosenfeldt ASCTS Representative to the RACS Council C. Hughes Senior Examiner in Cardiothoracic Surgery M. Edwards Chairman, Science and Education Committee M. Newman State Representatives M. Bayfield (NSW), T. Mau (QLD), J Knight (SA), A. Dixit (Tas.), P. Skillington (Vic.), G. Shardey (Vic.), D. Andrews (WA) New Zealand Representative P. Milsom Thoracic Surgical Representative S. Knight Younger Surgeons’ Group Representative M. Rowland
Australasian Society of Cardiac and Thoracic Surgeons
The ASCTS Submission to the Federal Government on Aspects of the Medical Indemnity Crisis: The Litigation Process and Risk Management The Expert Witness It is essential that the expert witness is credible and submits intellectually objective and relevant evidence. Therefore, such a person must have: 1 Current practical experience in the matters being described. 2 Relevant specialist qualifications in the specific area. 3 Appropriate credentials in the legal and ethical responsibilities of an expert witness. This implies that a panel of expert witnesses is established, preferably sourced from within the medical profession in Australia. To ensure veracity and objectivity, that witness should be required to provide the scientific evidence which supports their contention. It is recognised that such scientific evidence is not permissible in court proceedings at this time, on the basis that neither the judge nor jury is able to assess such evidence. However, there are processes for assessing the power of scientific evidence that exist in the medical literature. One of these is a derivative of the Cochrane Collaboration, which classifies such information on the basis of the veracity of data supporting it. In summary, Class I evidence is based on properly designed, randomised studies, the positive conclusions from which are highly likely to be true, whereas Class IV evidence is essentially personal opinion. The introduction of such a process, insofar as it is applicable, would enable the court to place appropriate emphasis on the evidence presented to it. It is recognised that there are areas of evidence for which there is no scientific support, so that recourse to such nebulous concepts as ‘current practice’ is necessary. However, the introduction of the concept of the class of evidence referred to above would be a major forward step in obviating the vexatious problem of superficially credible but
scientifically baseless evidence so often presented in court at this time.
The Definition of Negligence The test applied by Australian courts at this time is that based on reasonable care. This term cannot be rigorously defined. It permits the injustice of judgement in hindsight by those who may not have any experience or understanding of the specific circumstances faced by the defendant. The defendant is therefore held to a standard which is only contentiously applicable or inapplicable to the circumstances pertaining at the time of the incident. The practical outcome of the current test is that the distinction between negligence and misadventure is blurred or absent. The ASCTS submits that a more rigorous definition of negligence should be applied, so that a clear distinction can be made between negligence (that is malpractice or incompetence) and misadventure (that is a recognised deleterious outcome or complication of a procedure). Legislation to establish the Bolam principle as the determinant test of negligence may be a solution to this problem. It provides that a medical practitioner is not liable for medical negligence if he or she acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion. The utilisation of the Cochrane Collaboration system as the practical application of such definition would lend it further credibility.
Risk Management The ASCTS endorses recent initiatives by the Royal Australian College of Surgeons (RACS) and indemnity insurance companies to encourage all members to attend courses available on this issue and seek further advice relating to minimisation of risk.
198
ASCTS
Heart, Lung and Circulation 2000; 11
Conclusions
Council of the ASCTS
1 The ASCTS submits that the solution of the medical indemnity crisis in Australia necessitates an approach which embraces the entire environment of medical indemnity. 2 We recognise the essential importance of reform of the insurance system. However, we would emphasise the critical importance of the more difficult task to reform of the legal system, involving complaint resolution, litigation and method of compensation payment. These matters were addressed in some detail in a document submitted to government by the RACS. 3 The ASCTS specifically raised concerns with two particular aspects of the litigation process, that of the expert witness and that of the definition of medical negligence. We hope that the suggestion made will receive favourable consideration.
President P. Skillington Vice-President J. Knight Immediate Past President A. Farnsworth Secretary of the Society G. Shardey Treasurer G. Matalanis Secretary of the Board of Studies J. Smith Chairman of the Board of Studies P. Brady Journal Editor F. Rosenfeldt ASCTS Representative to the RACS Council C. Hughes Senior Examiner in Cardiothoracic Surgery M. Edwards Chairman, Science and Education Committee M. Newman State Representatives M. Bayfield (NSW), T. Mau (QLD), J Knight (SA), A. Dixit (Tas.), P. Skillington (Vic.), G. Shardey (Vic.), D. Andrews (WA) New Zealand Representative P. Milsom Thoracic Surgical Representative S. Knight Younger Surgeons’ Group Representative M. Rowland