Scalpel, Nurse ... Forceps ... Writ
Sydney Morning Herald
Wednesday January 7, 1987
Australian doctors received unwelcome New Year's tidings last week with the arrival of their medical malpractice insurance bill for 1987. With patients increasingly likely to sue them, the cost of their insurance is now five times what they paid three years ago.
In 1980 it cost only $75 a year for medical indemnity insurance, but by 1984 this had risen to $300.
The 1987 premium of $1,500 raises the question of whether a US-style medical litigation free-for-all has taken off in this country and whether we can expect some of the excesses of that system to occur here.
Certainly the rise in premiums reflects the fact that patients are much more frequently and successfully taking their doctors to court and winning six and seven-figure amounts.
Payouts by Australia's largest medical defence organisation, the Medical Defence Union Ltd, have increased nine-fold since 1979.
It seems the notion that doctor knows best has become an irrelevance with the rise in medical consumerism, freer legal aid and increased publicity being given to successful damages claims against doctors.
The profile of the medical profession is high and not necessarily pretty. Its frequent public disputes with governments over Medicare and fees, and the withdrawal of services from hospitals have made doctors seem greedy, and so made it easier for the public to conclude that they should be accountable in court for any of their failings or slip-ups.
Several months ago, Mr Justice Michael Kirby, the president of the NSW Court of Appeal and the former chairman of the Australian Law Reform Commission, warned doctors that the legal profession would turn to medical litigation work as they lost their monopoly on conveyancing and with the mooted change in workers compensation laws which would cut business for them there.
Medical litigation has become a sunrise sector of the law. Australia already has a number of specialists in this field.
The setting up of a complaints unit within the NSW Department of Health in 1985 to encourage patients to record publicly their grievances against doctors has encouraged patients to seek redress for what they feel is negligent, incompetent and unethical medicine.
Advances in medical technology have created a greater scope for medical disasters in diagnosis and treatment.
As a QC put it bluntly in a recent report to doctors: "The increasing proficiency of the medical profession in preserving life has had untoward financial consequences. Patients who some years ago would have died now survive to sue.
"Some are disabled by the complications of treatment, and complications spawn claims. This development is particularly acute in the case of the newborn who not uncommonly survive in an impaired state."
Peter Steiner is the pseudonym of a Sydney doctor whose name cannot be used for ethical reasons.
The number of well-publicised actions in the courts against doctors does not give a true indication of the level of medical litigation.
Most cases are settled out of court. The medical defence organisations stay silent to limit publicity to protect the doctor's name and to discourage similar cases. As well, the legal fees involved in all but very large claims usually exceed the amount of the settlement awarded.
Medical defence funds have been operating since late last century when groups of doctors banded together to protect themselves against the perils of practice. Today they remain non-commercial, non-profit organisations run by a board of doctors, with staff legal advisers. They also significantly differ from insurance companies in that they exercise a discretionary power not to defend a member if the board so decides.
In practice this rarely happens, but in 1985 the NSW Supreme Court upheld this right when the NSW Medical Defence Union declined to indemnify posthumously the deep sleep psychiatrist Harry Bailey in the case of outstanding actions against his estate.
The other major anomaly in medical defence is that membership is entirely voluntary.
This compares with the situation for, say, solicitors who since 1980 have been obliged to belong to a professional defence fund.
One case illustrates how easily a mistake can be made, how tragic the consequences can be and how an expensive malpractice suit results.
A general practitioner prescribed the common antibiotic Erythrocin for an infection but the pharmacist misread his writing and dispensed the diabetes drug Euglucon instead.
Dr Craig Lilienthal, the local secretary of the Medical Defence Union explained the consequences in a recent interview in the journal Medical Practice: "Despite the side effects of drowsiness, loss of balance, weakness and so on, the patient persisted with the medication. After all the GP said the tablets would cure the problem and everybody knows that antibiotics make you feel a bit off.
"The woman ultimately lapsed into a coma. The prolonged period of hypoglycemia (low blood sugar) did in fact leave her with selective brain damage. She will never be able to return to the workplace and will need permanent assistance with her domestic duties.
"She was a young widow with two dependent children and held a responsible position in the workforce. Even though the claim was shared with the pharmacist's professional indemnity insurers, it still cost the union a great deal of money."
Dr Lilienthal noted that while some areas such as birth injuries were a perennial source of claims, plastic and reconstructive surgery was becoming an increasing source of suits.
Payouts arising from failed contraception and sterilisation were rising rapidly as courts increasingly recognised some plaintiffs' demands for compensation which included the cost of rearing an unplanned child to age 16(including private school fees), loss of maternal income for five years and nine months and even the cost of adding an extra bedroom to the family home and buying a bigger car.
Another concern to the funds was the $20,000 award made in May last year to a Perth woman against her psychiatrist after she claimed she had become addicted to a tranquilliser he prescribed her. This is seen as a precedent for further suits of this nature.
The effect of all this litigation on Australian doctors is not yet evident, but if the US experience is any guide doctors may begin to refuse to do high-risk surgery or obstetrics, or stop prescribing certain types of drugs. Some doctors will be tempted to drop insurance as premiums rise, preferring to "go bare" - to transfer their assets to their spouse so that they have little to be sued for.
A development already in its early stages is the increased practice of defensive medicine, in which a doctor performs unnecessary tests on patients solely to protect himself from a future lawsuit. There is no benefit to the patient whatsoever.
If this develops further, it would lead to a huge blowout in the cost of Medicare.
In the end, as in the United States, we will all pay if a doctor's main concern becomes, "Will there be a writ at the end of the day?"
© 1987 Sydney Morning Herald
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