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The Medical Indemnity Crisis, Medical Negligence and the Urgent Need for Reform
EDITORIAL
Editorial
The Medical Indemnity Crisis, Medical Negligence and the Urgent Need for Reform E. Anne Shanahan∗ Cabrini Hospital, Cabrini Medical Center, Suite 44, Isabella Street, Melbourne, Vic., Australia
W
hen is an error, negligence? This is the basic, and unanswered, question in the current medical indemnity insurance dilemma. In this issue, Mr. Michael Gorton has succinctly summarized the current legal status of ‘informed consent’ and Dr. Paul Nisselle has outlined the historical passage from mutual providential societies to the now Australian Providential Regulatory Authority (APRA) regulated commercial insurance scenario. Dr. Nisselle also addresses areas of possible reform. Dilemma is an appropriate word to use in this context, it being defined as ‘a state of indecision between two equally undesirable alternatives,’#1 namely, the APRA regulated contracts of insurance combined with the Federal Government’s planned legislation regarding incurred but not reported claims (IBNRs); high cost claims scheme and exceptional claims scheme and the proposed (in some cases enacted) State legislative reforms to Tort Law and the legal test for medical negligence. The word ‘crisis’ is defined as a ‘turning point’ or in the alternative ‘a decisive moment.’#2 We have now reached the latter despite the Federal Government’s recent sidewise shift of the goal posts by delaying the IBNR payments for 18 months. The impact of this crisis is profound. It includes the early retirement of doctors, in particular surgeons, a probable lessening of the appeal of a career in medicine for secondary school graduates and the direction of specialist training away from the perceived high profile, high risk specializations such as obstetrics, neurosurgery and cardiothoracic surgery. All of this is occurring at a time when there is an acknowledged shortage of doctors in Australia. Mr. Michael Gorton has concentrated on the current legal status of informed consent. His comments with respect to public hospital junior medical staff providing and obtaining informed consent are apt. We already have a system where operations are performed by trainees and the supervising surgeon may only see the patient once or twice in an 8-day stay. Many resident medical officers have not seen the planned operation and have no first hand knowledge of its potential complications. The ‘reasonable patient’ test enunciated by the High Court of Australia in
Rogers v. Whitaker#3 is an ideal very difficult to achieve in the public hospital setting. A signed consent form is a complete defense to a charge of assault and nothing else. I cannot obtain truly informed consent except from another similarly trained and experienced surgeon. Providing them with such information would probably be considered as a waste of their time. As Mr. Gorton has pointed out, patients vary greatly in their requests and requirements for information let alone their ability to understand the answers. Doctors vary greatly in their ability to explain in simple words that can be readily understood. I not infrequently advise patients that I am referring them to X because of their superior technical skills, not because of their ability to communicate. When in need of surgery myself, I aim to obtain the services of the best technician and thus I feel obliged to offer patients the same advantage. Teaching communication skills at an under-graduate level may be of benefit although I doubt it. Dr. Nisselle explains in detail how the under-funding policies of several medical indemnity societies have precipitated the current crisis. His exit from the field of medical indemnity cover is an irreplaceable loss of experience. His considered solutions are directed to State-based reform of the Law of Torts. Reduction in the time-frames of The Statute of Limitations; proportionate as opposed to joint and several liability; the resurrection of contributory negligence and a return to the Bolam#4 ‘reasonable doctor’ test of negligence as recommended by the Eminent Persons Committee would provide a degree of certainty. Tort law reform is a piece-meal process with no guarantee that the States will enact congruent legislation. The various States’ legislative intentions are being documented and display considerable variation.#5 I have no doubt that the only effective and nation-wide solution is the establishment of a no-fault, third-party insurance system as has existed in New Zealand since 1974 and functions in a manner similar to our familiar Transport Accident Commission (TAC) and WorkCover (WC) insurance. The catastrophically injured’s right to sue for #3
∗ Tel.: +61-95-76-14-11; #1 Oxford Dictionary. #2
Oxford Dictionary.
fax: +61-95-76-14-14.
(1992) 175 CLR 479. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. #5 Australian Medicine, 3 November 2003, 17. #4
© 2004 Australasian Society of Cardiac and Thoracic Surgeons and the Cardiac Society of Australia and New Zealand. Published by Elsevier Inc. All rights reserved.
1443-9506/04/$30.00 doi:10.1016/j.hlc.2004.01.003
14
Shanahan The Medical Indemnity Crisis, Medical Negligence and the Urgent Need for Reform
EDITORIAL
injury that is flagrantly negligent (defined as disregard for the consequences) should be maintained. As stated by Kenneth Davidson#6 ‘the problem is political.’ The Commonwealth Parliament appears to have the power to legislate#7 although this has obviously not been tested by the High Court in the area of medical indemnity insurance. The States may request the Commonwealth to exercise ‘any’ power with their concurrence#8 and although they have been very reluctant to do so in the past, they may now wish to divest themselves of the medical indemnity crisis. Alternatively all State, Territory
#6
The Age, 16 October 2003. The Constitution. S51ss.xiv with respect to: Insurance, other than State insurance also State insurance extending beyond the limits of the State concerned. #8 The Constitution. S51.ss.xxxviii. The exercise within the Commonwealth, at the request or the concurrence of the Parliaments of all the States directly concerned, of any power. #7
Heart Lung and Circulation 2004;13:13–14
and the Commonwealth Parliaments could enact the same legislation as they have done in Corporation Law. The medical profession has for the past 5 years, concentrated its efforts on continuing medical education, risk management courses and the concepts of informed consent. The various Governments and the legal profession have contributed little. At this late stage all Governments have recognized the existence of a crisis and will hopefully act to resolve it, provided the political will to do so exists. The medical profession must maintain its pressure on the Commonwealth Government.
Editorial
The Medical Indemnity Crisis, Medical Negligence and the Urgent Need for Reform E. Anne Shanahan∗ Cabrini Hospital, Cabrini Medical Center, Suite 44, Isabella Street, Melbourne, Vic., Australia
W
hen is an error, negligence? This is the basic, and unanswered, question in the current medical indemnity insurance dilemma. In this issue, Mr. Michael Gorton has succinctly summarized the current legal status of ‘informed consent’ and Dr. Paul Nisselle has outlined the historical passage from mutual providential societies to the now Australian Providential Regulatory Authority (APRA) regulated commercial insurance scenario. Dr. Nisselle also addresses areas of possible reform. Dilemma is an appropriate word to use in this context, it being defined as ‘a state of indecision between two equally undesirable alternatives,’#1 namely, the APRA regulated contracts of insurance combined with the Federal Government’s planned legislation regarding incurred but not reported claims (IBNRs); high cost claims scheme and exceptional claims scheme and the proposed (in some cases enacted) State legislative reforms to Tort Law and the legal test for medical negligence. The word ‘crisis’ is defined as a ‘turning point’ or in the alternative ‘a decisive moment.’#2 We have now reached the latter despite the Federal Government’s recent sidewise shift of the goal posts by delaying the IBNR payments for 18 months. The impact of this crisis is profound. It includes the early retirement of doctors, in particular surgeons, a probable lessening of the appeal of a career in medicine for secondary school graduates and the direction of specialist training away from the perceived high profile, high risk specializations such as obstetrics, neurosurgery and cardiothoracic surgery. All of this is occurring at a time when there is an acknowledged shortage of doctors in Australia. Mr. Michael Gorton has concentrated on the current legal status of informed consent. His comments with respect to public hospital junior medical staff providing and obtaining informed consent are apt. We already have a system where operations are performed by trainees and the supervising surgeon may only see the patient once or twice in an 8-day stay. Many resident medical officers have not seen the planned operation and have no first hand knowledge of its potential complications. The ‘reasonable patient’ test enunciated by the High Court of Australia in
Rogers v. Whitaker#3 is an ideal very difficult to achieve in the public hospital setting. A signed consent form is a complete defense to a charge of assault and nothing else. I cannot obtain truly informed consent except from another similarly trained and experienced surgeon. Providing them with such information would probably be considered as a waste of their time. As Mr. Gorton has pointed out, patients vary greatly in their requests and requirements for information let alone their ability to understand the answers. Doctors vary greatly in their ability to explain in simple words that can be readily understood. I not infrequently advise patients that I am referring them to X because of their superior technical skills, not because of their ability to communicate. When in need of surgery myself, I aim to obtain the services of the best technician and thus I feel obliged to offer patients the same advantage. Teaching communication skills at an under-graduate level may be of benefit although I doubt it. Dr. Nisselle explains in detail how the under-funding policies of several medical indemnity societies have precipitated the current crisis. His exit from the field of medical indemnity cover is an irreplaceable loss of experience. His considered solutions are directed to State-based reform of the Law of Torts. Reduction in the time-frames of The Statute of Limitations; proportionate as opposed to joint and several liability; the resurrection of contributory negligence and a return to the Bolam#4 ‘reasonable doctor’ test of negligence as recommended by the Eminent Persons Committee would provide a degree of certainty. Tort law reform is a piece-meal process with no guarantee that the States will enact congruent legislation. The various States’ legislative intentions are being documented and display considerable variation.#5 I have no doubt that the only effective and nation-wide solution is the establishment of a no-fault, third-party insurance system as has existed in New Zealand since 1974 and functions in a manner similar to our familiar Transport Accident Commission (TAC) and WorkCover (WC) insurance. The catastrophically injured’s right to sue for #3
∗ Tel.: +61-95-76-14-11; #1 Oxford Dictionary. #2
Oxford Dictionary.
fax: +61-95-76-14-14.
(1992) 175 CLR 479. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. #5 Australian Medicine, 3 November 2003, 17. #4
© 2004 Australasian Society of Cardiac and Thoracic Surgeons and the Cardiac Society of Australia and New Zealand. Published by Elsevier Inc. All rights reserved.
1443-9506/04/$30.00 doi:10.1016/j.hlc.2004.01.003
14
Shanahan The Medical Indemnity Crisis, Medical Negligence and the Urgent Need for Reform
EDITORIAL
injury that is flagrantly negligent (defined as disregard for the consequences) should be maintained. As stated by Kenneth Davidson#6 ‘the problem is political.’ The Commonwealth Parliament appears to have the power to legislate#7 although this has obviously not been tested by the High Court in the area of medical indemnity insurance. The States may request the Commonwealth to exercise ‘any’ power with their concurrence#8 and although they have been very reluctant to do so in the past, they may now wish to divest themselves of the medical indemnity crisis. Alternatively all State, Territory
#6
The Age, 16 October 2003. The Constitution. S51ss.xiv with respect to: Insurance, other than State insurance also State insurance extending beyond the limits of the State concerned. #8 The Constitution. S51.ss.xxxviii. The exercise within the Commonwealth, at the request or the concurrence of the Parliaments of all the States directly concerned, of any power. #7
Heart Lung and Circulation 2004;13:13–14
and the Commonwealth Parliaments could enact the same legislation as they have done in Corporation Law. The medical profession has for the past 5 years, concentrated its efforts on continuing medical education, risk management courses and the concepts of informed consent. The various Governments and the legal profession have contributed little. At this late stage all Governments have recognized the existence of a crisis and will hopefully act to resolve it, provided the political will to do so exists. The medical profession must maintain its pressure on the Commonwealth Government.