A doctor has sued a patient for psychological distress and financial loss.
He has spent a year under psychological stress, his time has been diverted from full attention to his professional work, and he has had significant loss of income due to the high cost of his medical insurance.
The cause of his prolonged distress is that he has been sued - but not for gross negligence, malfeasance. or lack of skill. The outcome of a momentary slip was not loss of life or medical damage but rather something that in normal circumstances might be a cause for delight - someone wanting one child and getting two. (I write as a grandparent of twins.)
This doctor’s litigation as a plaintiff against a patient seems unusual. Is it justified? Actually, it has not even happened - but could it?
There has been public controversy over a patient’s right to compensation of $400,000 when both of two implanted embryos survived following her verbal decision to change her written request from two to one implant. She sought compensation for her psychological distress, loss of income, and the unexpected and unwanted physical and financial encumbrances of caring for twins and not a singleton. Parents of twins would agree that for the first two years twins take much more care than one, though their mutual company makes parenting easier later.
But what are the consequences of such litigation for the doctor, the medical profession, the supply of obstetricians and gynaecologists for other Australian mothers, for how doctors practice defensive medicine and for the explosion of expensive tests, and even - with all that legal activity - are there consequences in encouraging imbalanced entry of bright students into the legal profession, at a cost to other occupations?
A medical practitioner is liable for adverse outcomes caused by his or her negligence. Professional indemnity insurance for doctors indemnifies them against the consequences of a breach of professional duty, particularly negligence, which results in adverse outcomes for patients, that is, injuries sustained during medical treatment. This cover can be provided through not-for-profit medical defence organisations, which offer discretionary cover, or through commercial insurers.
The cost of liability insurance premiums probably contributes to GDP, but at what price?
The ACCC’s third monitoring report on medical indemnity insurance in 2005 found that some medical practitioners were paying over a third of their income in indemnity cover, while others left the profession or ceased high-risk procedures like obstetrics. The Australian Governments’ reform package includes taxpayers’ subsidising premiums and assisting medical indemnity providers and doctors with high cost claims. This is fairly costly. In 2005-6 the average written premium for an obstetrician was $49,451.
Particularly in the country, doctors’ insurance for obstetrics can outstrip the income gained from taking on the small number of local maternity cases. Hence there are rural mothers with no local care, and an overall shortage of gynaecologists and obstetricians.
There has also been growth in professional liability beyond the terms in the contracts with clients. Providers of professional services are now potentially liable in tort to an expanded class of persons to whom they might owe a duty of care, and for higher standards of care. Modern doctors are expected to be perfect in judgment and skill. Increased liability also results from lawyers’ “no-win-no-pay” arrangements that encourage lawsuits, and the creation of class actions.
Is it equitable that people cannot gain adequate assistance to cope with the financial and psychological problems resulting from accidents unless they can blame someone for it? It seems especially unfair discrimination for parents of children born damaged and requiring lifelong care, but where blame is unassignable.
Some proposals for reform have included compulsory professional indemnity insurance as a pre-requisite for medical registration, mandatory reporting of medical negligence litigation to enable a database to be built up, compulsory mediation for cases, capping damages, use of structured settlements to assure less unpredictable outcomes of litigation, and Good Samaritan legislation to protect doctors giving assistance in emergencies.
But can there be alternatives to the common law tort system for compensating adverse medical outcomes? It could seem fairer if on the one hand, evidence of gross negligence provided by victims is vigorously pursued by authorities so that incompetent doctors do not continue practice and grossly negligent ones are punished, and on the other hand, victims of health disasters are provided with the necessities for their care by the state without having to litigate.
In Australia there are already no-fault compensation schemes for workers compensation and injuries in motor vehicle accidents, and these could well be extended to a no-fault scheme for medical adverse outcomes, as in New Zealand, funded in a similar way.
This would have many consequences beyond the immediate issues of equity for victims of accidents, lowering medical costs, less anxiety for doctors without lessening of responsibilities, and less general waste of human resources - and even less waste of paper - as in current litigation.
In our individualist society, we often do not realise that what individuals do can have multiple and ramified social consequences.