Talking about passengers suing gliding clubs, this article sums up succinctly the problem we are facing in our medical system. After all, we are all patients. This could be titled: Carrying passengers in gliders: an uninsurable risk?
Please circulate this widely as we have to have tort law reform in Australia. > Discussion: Medical practice: An uninsurable risk? > > > Good afternoon, ladies and gentlemen. It is a pleasure to be back at > the > National Press Club in Family Doctor Week. > > There are many issues affecting medical practice and patient care these > days, but none more pressing than the crisis in medical indemnity. > > We have seen life in Australia as we know it changed forever by the > farce > that public liability has become. > > When school excursions have to be cancelled, when a local community is > unable to hold its annual fundraiser, when pony clubs are forced to > close > down?or when Bondi Beach has to consider whether it can afford to keep > providing volunteer lifeguards for the world's most famous beach because > someone sued the Council when they dived into a sandbank?something is > very > very wrong. > > But when those same communities are losing their doctors, when we start > finding it impossible to find trained doctors to deliver babies or > operate > on brain tumours?it becomes a matter of life and death. > > In Westmead, for example, 18 months ago there were 11 obstetricians > delivering babies. Today there are five. > > Of all the trainee obstetrician/gynaecologists at that hospital, not one > is > prepared under the current system to deliver babies when they qualify. > They will just practice gynaecology. > > It takes a medical generation to turn this sort of situation around. > > The medico-legal system as it has evolved has provided fertile pastures > for > the growing legions of plaintiff and defence lawyers to graze upon over > the > years. > > The emergence of 'no-win-no-fee' lawyers has created a Lotto mentality > amongst some injured patients who might otherwise not receive the care > and > rehabilitation they need. > > So, for some there is a windfall. For most, it's a massive shortfall. > > Medical practitioners have been gob-smacked at some of the judgments > that > have emerged from courtrooms. > > Lawyers and judges with no understanding of the nature of the practice > of > medicine routinely accuse doctors who have been going about their work > diligently and responsibly of negligence. > > They fail to take into account the nature of the clinical setting. > > In the cold hard light of a courtroom, they make no effort to explain or > consider the split-second high-drama decisions that must sometimes be > made > in life and death circumstances. > > It's not in their interests to do so. > > It's a case of 'sue now, and don't ask questions later'. > > Even eminent judges have felt compelled in recent months to come out and > criticise the legal system and the "Santa Claus mentality" that has > allowed > this crisis to develop. > > In a speech entitled "Negligence: the Last Outpost of the Welfare State, > NSW Chief Justice, Jim Spigelman, said that some judges have 'got it > wrong' > in awarding payouts for negligence over the years. He has listed a > series > of legislative and procedural reforms he sees as necessary > > The medical indemnity crisis cannot simply be swept under the carpet as > it > has been for the better part of the past decade. > > It is an issue that has profound effects on the whole community. > > It is a social problem that needs a national solution with national > leadership. > > Despite significant advances in tort law reform in NSW and moves afoot > in > other States and an "iron clad guarantee" from the Federal Government, > medical indemnity premiums are set to rise again by 50 to 100% in the > next > six months. > > And the Federal government is talking about a levy on top of that for > the > next five to ten years. > > They want doctors to pay for years of governments failing to heed the > medical profession's warnings about this crisis. > > It's not that the reforms are not working. We can only imagine the > situation we would be facing if the NSW reforms were not in place or the > Federal government had not stepped in at the 11th hour to prop up UMP. > > So we have reached the stage where we are forced to ask the question: IS > MEDICAL PRACTICE AN UNINSURABLE RISK?" > > One issue I would like to take up here and now is this concept of trying > to > create a commercial marketplace for medical indemnity insurance. > > I must say my colleagues and I were stunned at Senator Coonan's > suggestion > in April that several commercial insurers were interested in entering > the > market. > > That, of course, has not eventuated and never was going to in the > prevailing climate - and UMP limps on under the provisional liquidator. > > Medical indemnity should not be treated as a commercial opportunity. It > is > and should be a service for doctors and injured patients, NOT an > opportunity for commercial insurers to line the pockets of insurance > company executives and shareholders. > > It has been said to me that the interest of commercial insurers in the > medical indemnity industry would be a sign that stability has returned > to > the scene. > > I say that the best indication of stability returning to the scene would > be > a massive reduction in the number of cases being mounted against > doctors. > > It is worth noting that the main sources of injury in Australia ? motor > vehicle and workplace accidents ? are covered by statutory schemes with > only limited recourse to the court system. That is the only way they > can > be sustainable. > > There is no open commercial insurance market for compulsory third party > motor vehicle insurance. > > Why should we expect one to develop for medical injury, at least without > radical change to the legal system. > > Even if there were insurance companies champing at the bit to get into > this > so-called "market", is childbirth - with all its inherent > unpredictability > and potential for disaster - actually insurable? > > Is an emergency room overcrowded with the very seriously injured and > ill, > and often staffed by doctors-in-training, an insurable risk? > > Would any insurance company in a commercial market accept a policy for a > doctor to remove a deep-seated brain tumour - an operation that might > prolong life but at the possible price of greater disability? > > One of life's great ironies is that the better medical science has > become > at treating disease and keeping people alive, the greater have become > our > patients' expectations of the perfect outcome. > > With this has come the greater likelihood of punishing the doctor for > less > than perfect outcomes. > > Is medical practice an uninsurable risk? Today I will explore this very > question which cuts to the very heart of the debate. > > Just over a week ago, I attended the Annual Conference of the British > Medical Association. > > While I was there, I met with the President of the American Medical > Association. Like here, the medical indemnity situation in the United > States is dire. > > The American Medical Association has declared that only eight States are > off the medical liability danger list, and they are the States which > have > had meaningful tort law reform?such as California, Hawaii, Indiana and > Rhode Island. > > Twelve US states are in crisis, with another 30 heading that way. > > They are seeing physicians retiring early, moving to States where the > problem has been contained, or giving up high-risk procedures because of > liability concerns. Sound familiar? > > A woman in Arizona recently delivered her baby in a car on the way to > hospital 80 kilometres away because her nearest hospital no longer > provided > obstetric services. > > A man in Texas died from his head injury because it took seven hours to > find a hospital with a neurosurgeon to treat him. > > Mississippi physicians are crossing their fingers because there are no > 'level 2' trauma rooms north of Jackson. > > This is not from the 'only in America' file. It's happening here, too. > > It is important to point out that this is not just about affordability > of > medical indemnity premiums, although that is a big factor and the cost > must > of course be passed on to patients. > > In many cases, a commercial decision is made to settle a case rather > than > risk the cost of defending it, even when the doctor has not been > negligent. > > It is also very much about the nature of the adversarial legal system > that > relies on a culture of shame and blame?and the trauma for a patient of > bringing the action, and for the doctor of defending it. > > There is also the issue of the cost to the community of a cumbersome and > inefficient way of providing injured patients with the care they need > through the courts. > > Let's look at some indicative figures. > > The average number of private deliveries per obstetrician is about 100 > per > year. The average indemnity premium is $80,000. That works out at $800 > per > delivery. > > The MBS rebate for a normal delivery is $425.00. > > Estimated legal costs across the board are 45-50% of medical indemnity > premiums. > > So the entire Medicare budget for obstetric deliveries goes to lawyers. > And we thought Medicare was for patients? > > The UK is just starting to look at the impact that so-called 'clinical > negligence litigation' is having on their health budget and their health > system. > > 'Clinical negligence litigation' is actually a preferable term to > "medical > indemnity" because medical accidents are not just about doctors. They > are > also about nurses, administrators, computers, hospital procedures and > system failures. > > According to respected British authority, Professor Sir John Kennedy, > for > reasons of safety alone, the only solution for the future is, and I > quote, > 'to get rid of clinical negligence litigation'. > > Yes, you heard me right ? 'To get rid of clinical negligence > litigation'. > > Why so? > > Once again, it is not just about cost, although the cost to the National > Health Service is currently estimated at 400-500 million pounds per year > - > with two to four billion pounds worth of 'tail', plus social security, > medical care costs and lost productivity. > > No, the urgency is because litigation is the enemy of safety. > > Let's examine why. > > What do supporters of litigation claim are their objectives? > > . Compensation for patients > . Accountability of the health professional > . Deterrence of the conduct that led to the litigation > . Generating a culture of safer care. > > Professor Kennedy argues convincingly that litigation fails to achieve > any > one of these objectives. > > When you look at compensation, very few people who suffer harm from a > medical accident take legal action, very few who commence an action get > any > payout at all, and very few people get very large amounts. > > So, a socially just model of compensation is not achieved. > > What about accountability? > > The shame and blame culture of medical litigation means that doctors are > advised not to confess to accidents, not to disclose adverse events for > fear of expensive and traumatic litigation. > > The really bad, obvious cases of negligence are settled on the quiet > because they are not worth defending, and nobody gets to find out > because > secrecy is the condition of settlement. > > The possibility of litigation actively prohibits open disclosure. > > To make headway on quality and safety we need to have a culture which > values the reporting of adverse events for the opportunity they give to > improving the system. At the moment the culture is one of terror of the > legal risk. > > So this means that the system learns nothing about its failures because > there is no routine reporting of adverse events or accidents and > therefore > accountability is not achieved - and neither is deterrence. > > If there is no system for looking at why things went wrong, there is no > possibility for improvement to safety in the system. > > In fact, litigation works against safety because of the culture of > defensiveness. It makes monitoring and data collection impossible. > > It also leads to what we call "defensive medicine". That is where a > doctor > changes the way they practice medicine for the purposes of avoiding > legal > action rather than what is clinically best practice. > > An example of this might be the patient with a simple headache who gets > a > CT scan or an MRI of their brain rather than a couple of paracetamol and > a > good lie down and see how you are going in a week or so. JUST IN CASE > that > headache is a brain tumour or a rare blood vessel malformation once > described in an ancient Greek text. > > This adds not only cost to the health system but also the possibility of > adverse events related to the investigative procedures themselves. BUT > the > doctor has covered their legal risk. > > Even this week we have been treated to yet another threat of class > action > against a pharmaceutical company and doctors following the publication > of > the Women's Health Initiative study at Harvard. > > Following an extraordinary media beat-up which had some media > commentators > claiming the study showed that 26 per cent of women who took HRT > long-term > develop breast cancer, the medical profession was left to try to deal > with > the understandable anxieties of women in total confusion about their HRT > and whether it was going to kill them tomorrow. > > Then along came the plaintiff lawyers saying they were going to have a > go > at a class action for women who had taken HRT and developed heart > disease > or breast cancer. > > For a start, the study showed that the increase for breast cancer was in > the order of 8 in 10,000 women, and that the risk of heart disease was > about one-thousandth the risk of being a smoker. > > How exactly these lawyers were going to determine which women were going > to > get the breast cancer whether they had taken the HRT or not is beyond > me. > > But let's just say in our wildest imaginations that they decided to have > a > go and drag this one through the courts. > > Are the thousands of doctors who had prescribed HRT in good faith to > women > who were presented with all of the available evidence at the time at > risk > of litigation? > > All would be stridently defended. Who is likely to win? The lawyers, > of > course! > > And what of the pharmaceutical companies who researched and produced the > HRT? > > History gives us the example of the tragedy of thalidomide. If this > sort > of class action proceeded, there is unlikely to ever again be any > research > into medication for the treatment of morning sickness in pregnant women. > > If such a class action were to proceed under these circumstances it > would > plunge medical research and medical practice back into the Dark Ages. > > No pharmaceutical company would be prepared to put research funding into > hormone treatments...just in case it came back to bite them in the rear > thirty years down the track. > > On the one hand the consumer lobby calls for faster, more streamlined > drug > approval mechanisms. > > Yet research that emerges only after thirty years of experience in large > populations of women demonstrates a small negative effect. > > Rather than being celebrated as a triumph for medical research and a > valuable addition to the information available to women to make an > informed > decision about HRT, it is turned into an opportunity for a few legal > firms > to make a killing. > > But what could die in the process is medical practice. > > We need to 'treasure' medical mistakes as they are the clues to building > our safety mechanisms. > > Without "trial and error" we are likely to perpetuate error because we > would not know any better. > > Is it possible to get rid of clinical negligence litigation? Is this > desirable? > > Well, they're giving it a go in some countries, some more effectively > than > others. > > At the AMA National Conference this year we heard from Dr John Adams, > the > Chairman of the New Zealand Medical Association, about New Zealand's > Accident Compensation Corporation ? the ACC - which also handles medical > accidents. > > The ACC administers New Zealand's accident compensation scheme, which > provides accident insurance for all New Zealand citizens, residents and > temporary visitors to New Zealand. > > In return, people do not have the right to sue for personal injury, > other > than for exemplary damages. > > In 1989, medical mishap was included in the scheme, and lump sum > compensation payments were abolished and replaced with periodic > payments. > > Under the ACC scheme, a patient undergoing treatment accepts that there > are > certain risks involved. > > If a patient is injured as a result of medical treatment they are > quickly > assessed > > If a complication occurs which is severe or rare (defined as less than > 1% > chance), then the patient is assessed and the ACC makes a determination > whether the injury was a result of medical error or mishap. > > A medical error is defined as a failure to observe the standard of care > and > skill reasonably expected in the circumstances. > > However, medical error does not exist solely because the desired results > were not achieved or because subsequent events show in retrospect that > different decisions may have produced better results. > > OR the failure in question consists of a delay or failure attributable > to > the resource allocation decisions of the organisation. > > There is a parallel complaints and discipline system for health > professionals ensuring accountability. > > Our medical colleagues from across the Tasman admit the system has its > faults but they manage to work with it and pay on average $1000 per > doctor > per year. > > In the Netherlands, the legal system limits the level of damages payable > and clinical negligence has been removed from tort law. An arbitration > board deals with smaller claims. > > Physicians in the US are starting to look at a no-fault compensation > scheme > to keep malpractice out of the courtroom. > > I'll read you an extract from last week's edition of American Medical > News: > > "Physicians launched an all-out attack on the medical liability > crisis > at the American Medical Association's Annual Meeting in June, > making > liability reform the AMA's 'highest legislative priority'. > > "They're calling for legislation at the state and federal levels. > They want a public education campaign geared to help the public > understand how the crisis affects access to care. > > "They want a state-by-state analysis of litigation costs under the > current tort system. > > "They want grassroots physicians to call and write their > legislators. > > "They want to study a no-fault liability system. And, by December, > they want a plan for a national liability reform event, perhaps a > rally or march." > > Sound familiar? > > This is a very interesting development and a natural progression of > action > already undertaken in individual US States. > > A colleague told me last week of an initiative in Florida in the early > 1990s. > > They introduced a no-fault compensation scheme for neurologically > impaired > babies. > > Babies with cerebral palsy or other problems linked to birth were > automatically eligible for this scheme. > > A Study by Duke University found that under this system people were > getting > better services, and that care and rehabilitation services were better > targeted. > > Interestingly, the study found that before the system was introduced, > lawyers were getting around 45 per cent of compensation payments. After > the scheme, this amount came down to five per cent. > > Isn't that interesting? > > So, where are we in Australia on solving our medical indemnity crisis? > > We have three major activities happening and one major deadline. > > There is the Prime Minister's Departmental Taskforce led by the head of > the > Department of Prime Minister and Cabinet, Max Moore-Wilton. > > This involves senior offices of PM&C, Treasury, Finance, Health and > Ageing, > and Attorney-General's. > > The AMA has been working closely with this group. > > Then there is the Eminent Persons Group reviewing the law of negligence. > > This is urgently needed because most cases arise out of medical > accidents, > not medical negligence. As medical science advances and new technology > is > introduced to save and preserve life, new risks and higher patient > expectations are introduced. > > By definition, doctors are working with sick or injured people, so there > is > an inherent risk in everything we do. Yet the expectation of the > community > and the legal system is becoming more and more unrealistic. > > As a minimum, we should expect the Eminent Persons Group to advocate a > return to the Bolam principle. That is, a patient should expect a > standard > of care in keeping with accepted professional practice of the time, and > that it is not open to a court to find that a standard medical practice > is > negligent. > > One example of the courts ignoring the realities of medical practice and > redefining negligence is that of Kalakerinos vs Burnett. > > In this case a country GP referred a patient to a gynaecologist in a > nearby > town. The patient was reluctant to make the trip. The GP was > subsequently > sued because the patient's condition was not treated and the GP, > according > to the judgment, did not make sure the patient had attended their > appointment. > > The GP was effectively sued for the complacency of the patient. > > And then we have the work of Mr David Lombe, the provisional liquidator > of > United Medical Protection. We have yet to discover whether UMP is > viable > in the longer term. > > Facing them all is the deadline of 31 December 2002. > > This is when the Government's UMP guarantee expires and it's also around > the time when more than 20,000 doctors will have received their UMP > insurance renewals ? with the huge premium increases expected to be in > the > range of 50 to 100%. > > For some doctors, however, their personal deadline will have already > passed. They will have made their career choices. Some will leave the > profession. Others will steer away from high-risk procedures. > > As I said earlier, any significant change to the make-up of the medical > workforce can take a generation to turn around. > > Patients and communities would become significantly disadvantaged. > > Both the Eminent Persons Group and the UMP provisional liquidator are > due > to report by the end of August. > > What progress will we have by then, I wonder? > > Despite these groups working on solutions, little progress is being > made. > As the Roman historian, Suetonius, put it, things are 'hastening > slowly'. > > Progress is stalled ? due mainly to differing priorities. > > The AMA sees the urgent response based around: > > . A national reform of the law of negligence, with as a minimum the > return of the Bolam test > . Consistent and coordinated tort law reform in all States and > Territories > . A national standard Statute of Limitations of three years for > adults > and six years for minors > . Assessment of liability by properly accredited experts > . Removing Medicare payments and hospital costs from any awards > . And a proper community-funded national care and rehabilitation > scheme > as a minimum for the severely disabled at a set level of impairment [the > problem with our current care and rehabilitation arrangements is that > they > do not provide a disincentive to sue]. > . Effective management of the so-called "tail". Until now the tail > has > been looking for a donkey to pin itself onto. Unfortunately the Federal > government has picked the medical profession as that donkey with its > suggestion of a levy. This puts the tail before the donkey. > . There are many reasons that the "tail"?that is the estimate of the > cost of injuries that have never been reported?has in essence become the > big problem. Without uniform and strictly enforceable statute of > limitations, severely injured patients have an indefinite time, at least > 25 > years in some states, to bring a legal action against a doctor. > . No actuary could ever predict what a cerebral palsy case might be > awarded by a court in a quarter of a century, yet the medical profession > is > expected to both estimate and fund that amount today. > > While the Government is prepared to look at much of this agenda, their > priorities at the moment seems to be a levy on doctors and a subsidy for > high-risk specialties. But no detail. > > The AMA believes it is imperative that any discussion of a levy be put > off > until we have done all we can on tort law reform in every State and > Territory and introduced the national care and rehabilitation scheme. > > For doctors to agree to any levy at this time would be throwing > money into a black hole. > > If the Government drives its Chevy up to this levy, it will find that > the > levy is dry. > > Downward pressure must be placed on premiums, and this is just not > happening yet. > > While the tort law reforms in NSW are yet to slow premiums, I shudder to > think how high they might be without these reforms. > > It is vital that all the other States catch up with NSW. Nationally > harmonised tort law reform must proceed, particularly statute of > limitations. > > As it stands, from the point of State reforms, NSW is leaps and bounds > ahead of the pack. > > Queensland has now taken some AMA advice and is getting there. > > South Australia has gone for the soft option. > > But Victoria has not even stepped up to the starting blocks. Perhaps > the > starter's gun is held by the plaintiff lawyers in Victoria. > > So where are we if State tort law reform is not achieved and legislated > by, > say, the end of October? > > Where are we if the Government hasn't legislated for a suitable > community-funded care and rehabilitation scheme for the severely > disabled? > > Where are we if medical indemnity premiums continue to spiral out of > control? > > I'd say we'll all be in big trouble. There'll be chaos. > > It's time to fast track or change tack. > > Australia must have a back-up plan. > > For a start, we can't wait until December 31 to make decisions. > > The Government must be prepared to extend its guarantee to give the > States > and Territories enough time to get their reforms through and for > premiums > to start coming down. > > This extension must not be conditional on the imposition of a levy on > doctors. > > And, given the overseas experience, a national debate must begin on the > possibility of a national medical accident scheme. > > Different versions of a scheme have been raised by both sides of > politics, > Bob Carr and Joe Hockey the most notable. In an editorial this week, > the > Australian Financial Review also backed such a scheme. > > We need to go forward. We need an alternative to the current > adversarial > legal system for medical negligence. > > As a community we need to put an end to the notion that patients have > the > basic right to sue their doctors. That does not appear in any human > rights > charter. > > Instead, we should promote the concept that patients have a right to > safety > and good care, and support if they are harmed. > > The litigation system stands in the way of many people accessing that > right > to care and support which should depend on patient need, not proving > some > form of conduct by the doctor or the system. And it stands in the way of > improving safety in the health system. > > To cover all bases, the AMA is prepared to explore a National Medical > Accident Scheme. > > Such a scheme would support the needs of people who suffer impairment as > a > result of medical accident. > > The scheme would: > > . Be Government funded > . Provide services for long term care of the severely impaired > . Be governed by an impairment threshold. Anyone who suffers > significant impairment from a medical accident who needs support should > be > entitled to the benefits of the scheme. > . Allow small claims to be handled through a non-adversarial > complaints > mechanism with genuine cases of negligence, properly defined, referred > to > appropriate professional review. > . Provide effective risk management aimed at improving safety in the > health system. > . Support Medical Defence Organisations to remain as providers of > membership services like complaint review, representation at inquests > and > tribunals, disciplinary matters ? the so called 'road service' matters > relating to legal compliance. > . Support Open Disclosure in a non-adversarial environment. Open > disclosure is only possible in the absence of litigation. > > The medical indemnity crisis makes it necessary for us to at the very > least > closely examine such a Scheme for Australia. > > As the Fin Review so neatly put it, 'it is worth considering as part of > broader reforms'. > > Time is running out to fix the medical indemnity crisis. I hope I have > been able today to bring the enormity of the problem into focus for you. > > I began this address by posing the question: Is Medical Practice an > Uninsurable Risk? The answer to that question is inevitably yes. > > I'm happy to take any questions on medical indemnity or other medical > issues. > > Thank you. > > 17 July 2002 > > > -- > * To Unsubscribe: send email to [EMAIL PROTECTED] > * with "unsubscribe nat-div" as the only line in the body of the message > -- * You are subscribed to the aus-soaring mailing list. * To Unsubscribe: send email to [EMAIL PROTECTED] * with "unsubscribe aus-soaring" in the body of the message * or with "help" in the body of the message for more information.
