One of the biggest challenges of modern health care, especially care delivered in hospital, is to identify, investigate, respond to and, where possible, prevent the near misses and adverse events that have been consistently documented in many developed countries.
Here we argue that shifting to a no-fault scheme for compensating those who are harmed through adverse events is an essential step if further progress in prevention is to be achieved.
A key obstacle to dealing with this challenge is the routinely defensive attitude adopted by doctors, who have an ingrained awareness of Australia’s shame and blame adversarial legal framework for medical negligence claims. This defensive attitude seriously discourages reporting of adverse events and near misses. In general, it has been claimed that about half of these adverse events are preventable. While aiming for complete prevention is admirable, it is unlikely to be achieved since even the most conscientious doctors can make mistakes and systems can fail. This is partly because health care staff increasingly work in team situations where communication can breakdown and partly because they may be working when over-tired or stressed by the serious nature of the complex medical problems they face. Anyone who wishes to deny this reality is urged to read a recent new edition of a book that addresses these issues in an objective and detailed manner.
In this fraught area, it seems to us that we are operating two systems that blithely ignore each other. On the one hand, we have the well-oiled medical negligence claims system in which a combination of law firms touting their expertise, medical indemnity organisations competing for business, and semi-retired “expert” medical witnesses ready to sell their services come together in a lucrative trade. On the other hand, we have hospital administrators, staff and committees devoted to preventing adverse events and encouraging doctors to make open disclosure should an adverse event occur. In making such disclosures, doctors are expected to explain honestly to patients and their families what went wrong and apologise for the situation. At the same time, the doctors are asked to believe that an explanation and apology does not equate to an admission of error or legal culpability. The advice given to hospitals and doctors by the Australian Commission on Safety and Quality in Health Care about what is involved in open disclosure is 76 pages long and is unlikely to have been read by most doctors. This Alice in Wonderland scenario of two opposing systems is aggravated by the totally unjustified claim that the medical negligence system acts as an effective deterrent against future adverse events.
The advice surrounding open disclosure has other limitations. Early in the document there is an admission that: “Health professionals support disclosure but barriers remain to its practice, including: a. perceived medico-legal consequences of disclosure; b. concerns about preparedness for involvement in open disclosure; and c. tensions between the principles of openness and timely acknowledgement, and the requirement for providers to take early advice from their insurers following a harmful incident” (page 9); and “Open disclosure is an inherently complex and difficult process” (page 11). While hospitals are advised to offer patients reimbursement for out-of-pocket expenses where an adverse event has caused harm, and to inform patients about how to lodge a complaint, the document is silent with regard to restorative compensation. Indeed, a cynical reading of the open disclosure process is to see it predominantly as a means of seeking to reduce litigation and liability for negligence.
We have previously described the weaknesses of the adversarial medical negligence system which, in no order of importance, include: a waste of resources; unacceptable delays; randomness of outcome; and failure to compensate some who have been harmed because the person to sue cannot be identified. We have also pointed out that many developed countries, including Norway, Sweden, Finland, Denmark, New Zealand and France, as well as some states in the USA, have moved to no-fault systems for compensation for medical injury. Australia was itself on the brink of introducing such a scheme when the Whitlam Labor government was dismissed in 1975. While there are differences in detail among these various schemes, their intent is similar: they aim to promptly compensate patients who have been harmed through medical care, without having to determine that a health-care provider was at fault. There are separate processes to address those occasions in which the competence and fitness to practise of the health professional(s) involved has been called into question.
It is our belief that the introduction of a no-fault indemnity system for the harms that can befall people receiving medical treatment is long overdue. Its introduction could finally see a breakthrough in fully engaging the medical profession in handling the complex issues of adverse events and near misses. It would ensure prompt and equitable assistance for those who have been harmed. We emphasise that this change will not affect those essential processes that already exist for dealing with doctors who lack competence and skill or who are indeed reckless and for those who are unfit to practise because of impairment through illness or addiction.
It is too much to expect that these opposing camps (i.e. the medical negligence juggernaut and those interested in making health care safer) will take the initiative and negotiate a sensible way forward. So who will supply the necessary leadership to provide a breakthrough on this issue? It won’t come from those litigation lawyers and medical indemnity organisations that depend on the medical negligence industry for their existence. And it won’t come from timid health ministers who are heavily lobbied by parties dedicated to preserving the status quo. It is unlikely to come from the current Federal Government, which has shown little or no interest in these issues. Perhaps it might come from a state or territory health minister who has the foresight and courage to pilot a no-fault system in a single jurisdiction? Perhaps it might come from a cadre of enlightened hospital leaders who can see and accept that their efforts to build a culture of disclosure and prevention of adverse events are doomed for as long as the current medical negligence system remains? At the very least, this group might want to urge the Federal Health Minister to examine in depth the practicalities of shifting to a no-fault scheme. There will be questions about which agency or agencies might be best equipped to undertake such an examination. Possibilities include the Australian Law Reform Commission, the National Health and Medical Research Council, the Productivity Commission and the Australian Commission on Safety and Quality in Health Care, or perhaps a combination of these bodies to mobilise the necessary range of expertise and enable widespread community and professional consultation.
Surely it is finally time to consider a change that has worked well elsewhere and was first mooted in Australia 44 years ago. Not only will a no fault system help to minimise an important problem in modern health care but it will also address the inequities for patients, the waste of resources, and the stress and harm experienced by doctors that can all be attributed to the adversarial medical negligence system.
Kerry Breen AM is a retired physician, past President of the Australian Medical Council and of the Medical Practitioners Board of Victoria, a past Chairman of the Australian Health Ethics Committee of the NHMRC and a current member of the Australian Research Integrity Committee of the NHMRC/ARC.
David Weisbrot AM is Emeritus Professor of Law at the University of Sydney, past President of the Australian Law Reform Commission and an Adjunct Professor of Law at the Sir Zelman Cowen Centre, Victoria University.