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13 Nov 2019


In this golden age of ‘magic bullet’ medicine, doctors and patients alike hope that things will always go right – perhaps not with the certainty of air travel, but we do expect top-quality care. Of course, seriously ill patients die and we doctors recognise that we have much to learn in caring and curing those with cancer, dementia and end-stage organ failure.  But…

When the outcome is unsatisfying, it is natural to seek a reason. Patients may settle on someone to blame and punish. They might seek compensation. Through that portal, we enter the conflicted world of medical litigation and defence built on a combative relationship between medicine and the law. Court awards blew out so much in the 1990s that the Federal Government intervened with support which, following recent negotiations with the AMA, will continue.

Paul Niselle (a general practitioner and expert in medical indemnity, who has worked with medical defence funds in Australia and the UK for 20 years) wrote in 2011 about the complexities. 

Any doctor acting as an expert witness must know that their responsibility is to the court, not the person who has commissioned their report and testimony, but some doctors still slip into the role of medical advocate.

Whether it is a treating doctor asked to provide a report because the patient is making a compensation claim, or an independent expert commissioned by one of the parties to an action to provide a report, the doctor has a duty first to ensure they remain within their areas of demonstrable competence, and second, to write a completely dispassionate report, free of any bias.

The Australian Institute for Health and Welfare (AIHW), charged with keeping track of health and health care, provides data about claims. These arise ‘from allegations of negligence of breach of duty of care by healthcare practitioners’. Claims can be ‘closed’ by a court decision, by a negotiated settlement between claimant and insurer, or by dropping the case.

That report covered financial years 2008-09 and 2012-13. How claims are managed varies from State to State. Nearly 1,000 new public sector claims arose in the 2012-2013 – 120 from emergency departments and 114 from general surgery. The figures fluctuate from year to year, showing no trends. The annual number of closed public sector claims was about 1,500. New claims in the private sector were about 3,300 and closed cases (after increasing annually) were 3,800 (The most up-to-date figures available).

The process of litigation can make a public elective surgery waiting list look trivial. “For claims [relating to events in 2001-02] closed for $500,000 or more, the proportion was less than one per cent of claims up to five years after the incident, after which it rose very gradually to [about] five per cent of claims.” About 25 per cent of claims closed for $10K or less were settled in two years, but 50 per cent remained open after ten years. 

Drawn-out stress, if not agony, ensues for claimant and practitioner alike. This reaches well beyond monetary considerations. Regrettably for the practitioner, the media will often prominently feature the allegation, but not any exculpation.

The lack of overlap of legal concern with professional behaviour and that of the clinical guardians of the quality of clinical care can be substantial. It is not always clear whether an adverse deviation from customary practice is a quality or a legal concern.

When errors occur, there is often an element of individual responsibility (one should not practise if overtired, drunk or otherwise impaired), but there are strong social and physical forces which predispose to mishaps. Bad or insufficient equipment, erratic rostering, inadequate arrangements to cover colleagues absent on vacation, at a conference or ill, all predispose to error. Who or what is really to blame? As in poor human health, there are social determinants of poor medical outcomes.

Because every patient is different, problems arise at law when clinical practice guidelines are used as unequivocal statements of best practice for the individual patient. The guidelines are derived from standardised aggregated data whereas the individual is exactly that.

Although evidence-based medicine was originally defined as ‘the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients’, the latter half of the definition is often overlooked in the court room.

Guidelines are used as legal proclamations of the only acceptable practice against which the behaviour of a clinician might be held to be faulty. Yet the history of medicine is rife with new ideas being disparaged until they could no longer be denied. We have our own example in Barry Marshall and Robin Warren and their disputed theory of an infectious cause for peptic ulcers. Sometimes tenacity is needed to go against the tide of popular opinion in pursuit of best care.

A doctor’s duty of care, Nisselle argues,

extends beyond just those people seen as “patients” to include all people who could be affected by the exercise of professional judgement, whether in clinical practice or … in court.

[I gratefully acknowledge the help of Dr Peter Arnold OAM in writing this article.]





Published: 13 Nov 2019