Governments Must Limit Medical Litigation – 29 April 2002
Australian governments must change laws on medical negligence following the announcement that United Medical Protection (UMP) has applied for provisional liquidation, said Mr Stephen Milgate, Executive Director of the Australian Doctors’ Fund (ADF).
UMP was approved as a doctors insurer in January 2002 by the NSW government, who also made it compulsory for doctors in NSW to belong to an approved insurer or lose medical registration. Now because of this, 90%, of doctors in NSW face the prospect of losing their medical licence unless they can find someone else to take them on and find the money to pay the premium.
Mr Milgate said, “Sixty percent of doctors Australia-wide effectively have no insurance cover because their insurer has been litigated into oblivion.”
“The only long term financially sustainable way to provide patients with affordable medical treatment and compensation in the event of negligence is to introduce a much stiffer test for negligence that will deter claims being made for misadventure or opportunism.”
Under a proposal, jointly supported by the Australian Doctors’ Fund and the Council of Procedural Specialists (entitled Provision of Medical Services (Limited Liability) Act), negligence would only be the result of acts which would not have been done by a competent doctor in similar circumstances (ie the Bolam Test or reasonable person test). It would provide the courts with a clear directive as to what is negligence and what is misadventure.
The proposal would allow a patient to enter into a contract with their doctor before a medical procedure so that in the event of an adverse outcome the patient’s right to sue the doctor would be in accordance with the legislation.
The proposal also calls for further investigation into how patients suffering misadventure can be fairly and equitably provided for including the possibility of medical misadventure insurance.
The proposal could also be extended to include facilities such as emergency rooms and other areas where high risk procedures are undertaken. Other essential reforms include compulsory mediation before litigation, and a strict statute of limitations on claims.
Mr Milgate said, “The medical litigation gravy train has been derailed because the system simply could not afford the broad definition of negligence and the record compensation payouts associated with catastrophe claims.”
“It is now time to ensure that other medical indemnity providers do not follow UMP into liquidation. The only way to do this is to have a strict definition of negligence,” Mr Milgate said.