Ep76: Making Amends- Medical Injury Part 3

Ep76: Making Amends- Medical Injury Part 3
6 December 2021

Fellows of the RACP can claim credit for listening to this episode and reading supporting resources via MyCPD.

This is the third podcast in a series about medical injury. First we talked about what victims of injury want to hear from the health system after such an event. And then we discussed the guilt and compromised professional identity that doctors might feel when they’ve been involved in a patient harm. We also heard how fear of medicolegal suits is a major obstacle to greater transparency. At least that’s the case in Australia, where litigation is virtually the only way for victims to get financial compensation for their hardship and ongoing care. New Zealand, by contrast, operates a no-fault compensation scheme where all such costs are born by the government, for harms from care that are relatively unpredictable. We’ll look at the advantages this system has, for patients and practitioners, but also at some of the issues that remain unresolved.


Associate Professor Marie Bismark FAFPHM (Melbourne School of Population and Global Health University of Melbourne).
Associate Professor Katharine Wallis FRACGP FACRRM (Head, Primary Care Clinical Unit, University of Queensland)

Written and produced by Mic Cavazzini DPhil. Music licenced from Epidemic Sound includes ‘Circular’ by Silver Maple, ‘Into the Bone’ by Taylor Crane, ‘Heart of the River of the Sun’ by Lama House, ‘Disconnect’ by Gavin Luke, and ‘Five Below’ by Torii Wolf. Image licensed from Getty Images. Feedback on this episode was kindly provided by the following members of the Podcast Editorial Group; Loryn Einstein, Phillipa Wormald and Lisa Mounsey.


Apology laws and open disclosure [MJA]
No-Fault Compensation In New Zealand: Harmonizing Injury Compensation, Provider Accountability, And Patient Safety
[Health Affairs, Bismark 2006]
Claiming behaviour in a no‐fault system of medical injury: a descriptive analysis of claimants and non‐claimants
[MJA, Bismark 2006]
New Zealand's 2005 'no-fault' compensation reforms and medical professional accountability for harm
[2013, NZ Med J]
Beyond negligence: avoidability and medical injury compensation
[Social Science & Medicine, 2008]
No-fault, no difference: no-fault compensation for medical injury and healthcare ethics and practice
[British Journal of Medical Practice, 2017]
Justice, restoration and redress: Error, no-fault and tort-based systems
[J Law Med]
Error and Accountability in a No-Fault System: Maintaining Professionalism
[J Law Med]
Patients' Experiences With Communication-and-Resolution Programs After Medical Injury
[JAMA Intern Med]
Models of clinical indemnity: review of evidence
[Deirdre Mongan Health Research Board, 2011]
How best do we compensate for accidental medical injuries?
Minimising Medical Litigation: A Review of Key Tort and Legal Reforms
[Int J Law in Context]
No Role for Apology: Remedial Work and the Problem of Medical Injury
[J Health Policy & Ethics]
Making amends for adverse events arising during hospital care
[J Pat Safety Risk Management]
Disclosing Adverse Events to Patients: International Norms and Trends
[J Patient Safety]
Administrative Compensation for Medical Injuries: Lessons from Three Foreign Systems
[Commonwealth Fund]
Improving Patient Safety And Lowering Malpractice Costs Through "No-Fault" Compensation Systems
[Commonwealth Fund]
Medical negligence - Key cases and application of legislation
[Annals Med Surg]


MIC CAVAZZINI:               Welcome to Pomegranate Health, I’m Mic Cavazzini for the Royal Australasian College of Physicians.

On a Sunday night in 2002, Jennifer Masson of Cairns was heading over to a friend’s place just like any 25 year old. She had a history of severe asthma, and was already wheezing as she came through the front door around 11pm. She fetched her Ventolin from the car, but on the way back up to the house collapsed unconscious on the front lawn. Her friends called an ambulance and the first of two crews arrived within six minutes. Given her high heart rate and blood pressure, the paramedics decides that adrenaline carried too much risk for arrhythmia or cardiac arrest. They administered intravenous salbutamol instead, and at first Ms Masson’s condition seemed to improve. During the transfer to Cairns Hospital, however, her heart rate started dropping. Given a state of "imminent arrest" the paramedics then injected adrenaline which got her back to the emergency room.

But it was too late—Jennifer Masson had experienced prolonged hypoxia and emerged with severe brain damage that made her reliant on a wheelchair. After 14 years living with round the clock personal care a suit was mounted on her behalf against the Queensland Government that operated the ambulance service. She died in 2016 before the case was heard in the Supreme Court, where it was argued that the paramedics had strayed from the Queensland Ambulance clinical practice manual which advised use of adrenaline as a first line intervention for patients “in extremis”. But the defence were able to convince the judge that the manual only instructed that adrenalin be considered, and the paramedics had made a clinically defensible judgement in opting for salbutamol instead.

The family challenged this judgement, and the Court of Appeal determined that the paramedics had not been consistent with a majority medical opinion and not shown “reasonable skill and care”. This overturned the Supreme Court’s decision and the Queensland Government was ordered to pay compensation of over $3.1 million. The State then took it to the High Court, and in August 2020 the five justices ruled unanimously that the Court of Appeal had made a mistake.

The Justices echoed the original trial judge that the Practice Manual was "intended to guide and assist rather than to proscribe decision making." They accepted that a majority of emergency medicine specialists might administer adrenaline in the first instance. But paramedics practice with different training and under different pressures, and they determined that those who might preference salbutamol these circumstances were not negligent in doing so. The Masson family was left to cover the costs of five years of legal proceedings- surely a devastating blow on top of the anguish they had already suffered.

This is just one of many heartbreaking medicolegal stories occurring every year in Australia. As we discussed in the last two episodes, both the victims of medical error and the health professionals responsible can suffer psychological morbidity from such scenarios, but sadly the fear of litigation is a major deterrent to more transparent disclosure of adverse events by health services. That’s still the case despite almost two decades of legislation in Australia that protects such explanations and apologies from use as an admission of liability. These civil liability acts provide a carrot for open disclosure. In 2014, the UK introduced the stick. The Duty of Candour is a statute that makes NHS Health Trusts liable for fines of £1250 for every adverse incident they fail to disclose and two years ago a Victorian Expert Advisory Group recommended that similar legislation be introduced in that state.

It’s not clear that things have changed much in the UK, and in Australia, victims of adverse healthcare incidents still have to sue a healthcare provider to get any sort of compensation. But as we heard in the case study presented, plaintiffs need prove that they were victims of negligent care. In legal terms this would be called a ‘tort’ or a civil wrongdoing, but it’s a very high bar to pass when most medical injury results from line-call decisions like adrenalin versus salbutamol, or from side effects of treatment that are hard to predict. Even where it’s clear that a clinical error has occurred, it’s usually because health professionals are overstretched rather than practising with disregard for their patients. It then becomes a case of whether the health service has forced a health professional to work beyond their capacity- but the upshot of all this is that plaintiffs generally have a hard time securing a prosecution. Only a fraction of victims of medical harms even initiate proceedings, and a tinier fraction still actually succeed in court or secure settlements beforehand.

In Aotearoa-New Zealand, however, this angst is largely defused by a “no fault” compensation scheme. A family like the Massons would have been swiftly awarded the costs of Jennifer’s ongoing care and some financial recognition of Jennifer’s hardship too, without first requiring that the health service be found guilty of malpractice. The government-operated Accident Compensation Corporation has been around in some form since 1974 and is also responsible for compensating injuries from workplace and road accidents. In early iterations, only the most obvious medical errors were covered by the scheme, but since a 2005 amendment to the legislation the ACC covers any adverse outcomes of routine care that can’t be predicted with confidence. To better understand how this system works I spoke to public health physician Marie Bismark, who has worked on both sides of the Tasman Strait.

MARIE BISMARK:             I’m Marie Bismark, I’m an Associate Professor at the University of Melbourne and a medical practitioner working with Melbourne Health. So, New Zealand’s no-fault compensation scheme has got lots of advantages; I think it’s got advantages for patients, so people who need compensation for any kind of injury. The process is much faster, so usually less than 20-days for a claim to be decided, whereas if you’re going through the courts in Australia, it can take months or even years for a compensation claim to be decided, so that’s a real advantage for patients. The system’s much less adversarial for doctors as well, so generally, doctors in New Zealand are supporting patients with their compensation claims rather than feeling like they’re in an adversarial court process with them.

MIC CAVAZZINI: And under the scheme, patients can claim for the costs of rehabilitation; a lump-sum payment to compensate for permanent impairment, some proportion of earnings.

MARIE BISMARK:             That’s right. So, the New Zealand compensation scheme covers your treatment costs, for example, if you need surgery in a private hospital; that would be covered, if you need any home modifications, say for example, if somebody needs wheelchair access to their home; that will be covered. If you can’t return to your previous occupation, there’s vocational counselling and vocational rehabilitation to support you back into a new job. One of the other big differences from the Australian scheme is that when you get compensation through a court system, there’s usually a single lump-sum settlement, which means that the court has to try and estimate what all of the future costs of your care will be. Whereas under the New Zealand system, people are reassessed every year. And the advantage of that is that as people’s needs change, their compensation package can be adjusted, so if people are recovering really well, they might need less compensation than you initially thought, and if they’re having a really delayed recovery, they might need additional supports. But the focus is very much on supporting people to get well and get back to work.

MIC CAVAZZINI:               In your article in the MJA – it’s a few years old – you wrote that average payouts were around $25,000 New Zealand Dollars with a median of $4,300.

MARIE BISMARK:             Yeah. So, people talk about this kind of forensic lottery, where if you sue someone through a torts-based system, the potential maximum payout is much higher, but many people won’t receive any compensation at all. So, under the New Zealand system, more people will receive compensation, but the amounts are usually more modest.

MIC CAVAZZINI:               And do the patient satisfaction data suggest that they’re generally happy with that?

MARIE BISMARK:             I think ACC is so much part of the fabric of society, so because it covers such a wide range of injuries – so everything from sports injuries to workplace injuries, to road traffic accidents, through to medical injuries; almost every New Zealander will have contact with ACC at some point of time – it’s really part of the fabric of New Zealand’s society, and I think on the whole New Zealanders really value the support provided by ACC.

MIC CAVAZZINI:               You conducted an audit of New Zealand datasets after that 2005 update in the legislation and there were some teething problems with the scheme. So you found that still only three to fiver percent of patients who were eligible for compensation actually went through the claims process. And in that cohort who didn’t make claims, there was an overrepresentation of the elderly, of Māori and Pacifika patients and people from socioeconomically deprived areas. Can you unpack that a little bit?

MARIE BISMARK:             So, the New Zealand scheme is certainly not perfect. There certainly is concern in the New Zealand system that Māori patients and elderly patients are under-represented in the compensation claim numbers. I think with any medicolegal compensation system, we do see these inequalities where patients who have higher levels of education, higher levels of socioeconomic privilege – it’s easier for them to navigate medicolegal processes. And whether you’re talking about a court system or a no-fault compensation system, it requires a certain level of trust in authorities and a certain ability to navigate a system. So, the Accident Compensation Corporation in New Zealand has been trying really hard to reduce those disparities and to make sure that people are able to access support to file a compensation claim if they need it.

MIC CAVAZZINI:               The ACC compensates patients not just where medical error has occurred, but any adverse events from medical care that were unexpected. So an allergic reaction to an antibiotic could trigger a claim, and the further costs of care would be covered. By contrast, hair loss from cancer therapy is a well-known side-effect that an informed patient can consent to. There is an appeals process for claims that are rejected on the first pass, but New Zealanders who do submit a compensation claim give up the right to sue for further damages in the courts.

The ACC cuts out a lot of the administrative burden and legal expenses of a tort-based compensation system. A physician in Australia might pay around ten thousand dollars a year in premiums for medical indemnity insurance, while for a neurologist or obstetrician the figure can be as high as 90,000 dollars. New Zealand doctors of any specialty pay no more than $1500.

And then they’re also much less scared of missing rare diagnoses or being seen to undertreat.  Instead, in a survey of 3000 Australian doctors over half said that fear of medicolegal consequences had driven them to order tests that were unnecessary, and 11 per cent admitted to prescribing unneeded medications. In the famously litigious United States, it’s reported that about $45 billion US dollars a year is spent on defensive medicine; more that 2 per cent of that country’s total health care costs.

Here’s Associate Professor Katharine Wallis, who currently heads the University of Queensland’s Primary Care Clinical Unit. Before coming to Australia that she practiced for twenty years in Aotearoa-New Zealand with ties to the Unis of Auckland and Otago.

KATHARINE WALLIS:      You know as far as the motivator on practitioner behaviour, my experience from practicing under both systems is that more adversarial litigious system drives people to over investigate and over treat, because, you know, they're so motivated not to miss anything, if you like, or not to be accused, at least, of missing something. So they, swing the other way and get every test done so you you're not going to be the one rare thing or whatever. You know the advantage with the no-fault system—it's administratively much less burdensome, so, you know, the resources can be spent on patients and helping them get better rather than on lawyers trying to sort of fight it out in court. So you're sort of shifting where the money is spent, I guess.

MIC CAVAZZINI:               It doesn’t need to be said, but inevitably the bloated administrative and legal costs in torts-based systems like Australia, the US and the UK end up being passed on to patients. Private practices simply increase their fees to cover costs while public hospitals divert more of their tax-derived funding to non-medical expenses. In a comparison among OECD countries, those that have adopted no-fault compensation schemes, which include France and Denmark, have reduced their costs and are able to spend more on actual healthcare itself.

Even in the US, there are independent health services changing their culture with compelling results. One physician-owned insurer in Colorado recorded 930 adverse incidents over the first five years after it adopted a compensation and reconciliation scheme. Two thirds of cases were resolved with good communication alone and third received with compensation payments. The two cases that did progress further were settled before reaching the courts.

Another presumed benefit of a less litigious environment is that practitioners would be more comfortable discussing adverse events openly without fear of getting sued, and that quality and safety improvements could be made in response. Writing in 2013 for the New Zealand Medical Journal, Katharine Wallis noted that such gains were hard to demonstrate. I asked her if any more evidence had been collected in the years since her article.

KATHARINE WALLIS:      I guess the argument always is that under this no-fault system, doctors have got have nothing to lose and they can declare everything openly to the patient and their colleagues and their employers. But I don't think there's any evidence of that—I don't think, personally, that it makes for a safer system. The safety initiatives are really going to come through ongoing professionalism, and making sure people are up to standard and well-motivated.

MIC CAVAZZINI:               Yeah well on that note, even if there aren’t data that would show, unequivocally, benefits for quality and safety do you have any reflections from your own practice whether “the vibe” any different, to borrow a line from the Castle.

KATHARINE WALLIS:      From my personal experience, I don't think there's any difference in the openness, and I don't think there's any difference in the motivation. I think under both systems there’s no laissez faire—people are not sitting back thinking, “Oh, I'm not going to get sued, I'll just put my feet up and, you know, take a really careless attitude to practice”—that just doesn't happen. You know even in New Zealand's no-fault system, people feel really bad when patients get a poor outcome, regardless of whether they're going to get sued or not. You know, there's a lot of that sort of internal driver for, for professional behaviour.

I mean, what we tried to do when the legislation was first introduced, was look at all the treatment injury claims, to see what we could learn from those claims for improving patient safety. Arguably you could say, well, why don't you just focus on the errors because in an error, somebody somewhere has done something wrong, and then they could learn to do it right the next time, kind of thing. But when we looked at the claims, the vast overwhelming majority were for injuries completely unrelated to error. And so the really the only way to reduce those injuries would be not to provide the treatment in the first place. And whenever you provide treatment, you've always got to balance the risks and the benefits.

MIC CAVAZZINI:               Right, yeah, and we have already discussed in the previous episodes the idea of systems error—how it might not be anyone person’s fault.

KATHARINE WALLIS:      There's not even necessarily an error, you know. Somebody might have been given the right treatment, or the right diagnosis at the right time, and all the rest of it, and nevertheless they are harmed—somebody might have a bad reaction to something or whatever. I guess my big point really, Mic, is to distinguish between error and harm. And there’s so much harm caused that's not associated with errors and not caused by errors. And there's a whole heap of errors that don't result in any harm as well. So there's a small overlap only. And, you know, you can focus on that little bit of overlap on the areas that do cause harm, but I don't think that's where the big bang for your buck is going to be if you're trying to improve patient safety. That is the beauty of New Zealand's system is that everybody gets treatment and rehabilitation for the injury, regardless of having to prove somebody somewhere did something wrong.

MIC CAVAZZINI:               In another 2011 paper in BMJ Quality and Safety you began by describing it as “the first study to analyse the no-fault treatment injury claims dataset to identify threats to patient safety in primary care.” So you were motivated nevertheless by the prospect that the new claims database would provide a more comprehensive record of injuries in healthcare?

KATHARINE WALLIS:      Definitely, we were trying to work out what was causing all the harm resulting in these claims. So, by far and away, the majority of the harms were caused by medication, and you know, it's the most prescribed medications that are causing the most harm—so the usual sort of suspects. Yeah, and again, it's not that somebody made an error or giving the medication. It was just the medication itself that was causing the harm.

MIC CAVAZZINI:               But did you notice any change, I mean, was there broadly any difference in the patterns of medication events that were reported or captured after the 2005 legislation?

KATHARINE WALLIS:      Yeah, so prior to the, to the legislative change in 2005, none of these claims, none of—or very few of the medication-related injuries would have been covered under the system. Because previously, as I'm sure you know, you know, you had to meet that rare and severe threshold and so there was very little to look at in the ACC sphere. In the 2005 reforms just opened up the floodgates for people to get this treatment covered under the ACC system. So, the vast majority of the injuries that were happening in the primary care sector anyway, were minor injuries; so a rash from antibiotics or, or diarrhea or something that they had to go back and see the GP for and then the GP said, “Oh, you know this consultation can be covered under the ACC system so we can we can lodge this this claim and then you won't have to pay me any money.”

MIC CAVAZZINI:               Right, so a lot more data did filter in because of the claims system.

KATHARINE WALLIS:      A lot more.

MIC CAVAZZINI:               Just a few months ago you published a paper in BMJ Open where and your colleagues examined rates of harm as captured instead in New Zealand’s electronic medical records. The first line of the discussion is “Most patients did not experience harm identifiable from their medical records.” Is that to say that GPs aren’t very good at charting this medical injury or perhaps the records aren’t well set up to do this?

KATHARINE WALLIS:      Yeah, so for that paper that you're talking about, we reviewed, GP medical records—so this was three years worth of—I think it was 60,000 patient records, like a huge records review study that took us forever to do. So we would look at every consultation note that the patient had been to see the doctor over the years. And if—well, you know, what the variability in medical records or doctor record keeping can be like—but if somebody wrote something like, “nausea and vomiting since starting this medication,” or, you know, “swollen ankles, since the last three months being on this blood pressure medication” or something like that—so the GP may not have necessarily written them the notes, “medical injury,” or anything like that—but you can put two and two together, because it was GPs reviewing the records that they were on this medication, and they had swollen ankles, and then they were taken off their medication.

So when you're trying to look at, you know, the things that go wrong in healthcare, there's lots of different windows or lenses through which you can look at it, you know, the doctor patient interactions and the treatments that are provided. You know, so one window is provided by the ACC treatment injury claims; You can do a medical records review, which in theory would sort of give you the most in-depth record, because it's not going to miss anything, hopefully; You can look at patient complaints. And whatever window you look at it through, you'll get a different view. And then you've got to ask yourself, “What's the most accurate view?” or “what's the most useful view to sort of look at to try and work out how to improve the situation.

MIC CAVAZZINI:               We already raised in the previous two episodes the difficult question of accountability after medical injury. One attempt to define it better was made by Grant Gillet, Professor of Medical Ethics at Otago University Medical School. In a 2016 article titled, “Justice, restoration and redress” he presents punitive justice as the idea that there is a perpetrator who needs to be punished, whether through fines or conditions on their licence to practise. That’s appropriate where someone has been knowingly operating beyond their scope of practice. But not for the vast majority of harms that occur despite the best intentions and skill of a practitioner.

Australia’s compensation system would be described as corrective justice, but that requires what Professor Gillett calls a “fault criterion” to be met.  As we’ve heard that’s not easy to do, but even where prosecutions are successful it might not bring much comfort to the victims, particularly where the personal exchange between parties becomes submerged by the machinery of insurance companies and hospital management.

No-fault compensation is instead an example of distributive justice. In this framework the risk of adverse events and the cost of compensating them is essentially shared among all participants of the social contract, let’s call them taxpayers. It fits better with the modern conceptions of “Safety 2” that we discussed previously; that human error and unpredictable physiological responses are always a risk, but these can be mitigated by better support of staff, more candid data collection and well-placed safety nets.  One criticism of this model is that it might not satisfy the desire for accountability. Perhaps the no-fault setup is so effective at distributing justice that it can seems to victims that no one actually takes responsibility. I put this idea to Marie Bismark.

MIC CAVAZZINI:               There was a hint of that in the study of New Zealand victims of medical injury by your collaborators, Jennifer Moore and Michelle Mello; they could be left feeling that it’s all resolved within a few weeks, and a few thousand dollars changes hands, but that their personal drama had been forgotten. One woman told researchers, “I suppose from the hospital’s perspective it’s resolved because our discussions had ended and our claim was accepted, but it’s not resolved for us; our baby’s no longer with us.” Do you think—is that prevalent?

MARIE BISMARK:             And I think that probably in tort-based jurisdictions, patients are sometimes left feeling that nothing has really changed as well. They might feel that it’s the insurer who’s paid out the claim and that perhaps the doctor or the hospital haven’t really taken the incident to heart.

MIC CAVAZZINI:               Yeah. And there’s an old British paper that you cite from The Lancet titled, “Why Do People Sue?” And out of 227 respondents, about half agreed with the statements so that doctors didn’t get away with it or so that doctors would be disciplined. But 90 percent said, “I wanted an explanation so that it wouldn’t happen to anyone else.” So, they’re rather magnanimous. At the risk of presenting too tidy a conclusion –maybe the quality improvement side of things—maybe that’s the kind of accountability that’s most important – and the take home message would be that if you are in the unfortunate scenario of having to disclose a medical error, don’t just assume that once you’ve had that meeting then your obligation is discharged.

MARIE BISMARK:             That’s right, it’s so important for families that there is that follow up. I think that there are so many open disclosure meetings where there are promises of investigations and promises of change, and families are often really interested to know that that’s actually been implemented and that has happened.

I think accountability is a really complex concept. So I think it’s really helpful to try and separate out the different objectives that patients have. Some patients really need compensation after an injury, particularly people who were working and have now suffered a permanent disabling injury; compensation is really important for people who can’t work anymore after an injury. Whereas for other people, it’s much more important for them to feel heard and to know that lessons have been learnt, and that things will change because of what happened to them. And the example of a family who have lost a child is the perfect example where no amount of money in the world is going to make that right, and for those families it’s often much more important to feel that somebody has really committed to trying to protect other families from similar grief and pain.

MIC CAVAZZINI:               Katharine Wallis has also addressed this question of accountability from a slightly different angle. In her article for the NZ Medical Journal she looked at rates of claims and complaints and disciplinary referrals following the 2005 amendments. She reported that while the number of claims had gone up, so had the number of patient complaints. Meanwhile the rates of practitioner referrals to the NZ Medical Council declined from an average of 53 referrals a year to an average of 12. Furthermore, “the Medical Council conducted fewer performance reviews and referred fewer doctors for discipline… but more hearings ended in guilty findings.” In the article Katharine Wallis suggested this might represent a “an overall decrease in medical professional accountability for harm” but she explained to me that there are appropriate streams for handling cases of malpractice.

KATHARINE WALLIS:      You know, accountability is holding somebody to account for something that goes wrong. So New Zealand's ACC system is not about accountability, that's about providing, treatment and rehabilitation for people who've been injured, and you sort that out and help them regardless of whether it's been caused by anybody doing anything wrong or not.

But when somebody has done something wrong— you know, a patient complaint might alert them or colleagues referral might alert that the Medical Council of New Zealand—that's the system where people are held to account The ACC can refer to the Medical Council, as well, and I would say going in via the ACC system is not the most common system not and probably not terribly relevant, given the numbers are so small. So even though perhaps referrals dropped, before and after the 2005 ACC changes, there's so few cases that make it through to the disciplinary process—really only the very pointy again— so I don’t think you can necessarily link the two.

I mean, when New Zealand's system first came in, arguably, at that point in time, you know, the accountability was, was not high enough. And so subsequently, the Health and Disability Commissioner system was brought in to investigate patient complaints. under the complaints system, which is, I think, as it should be—it's a different system.

MIC CAVAZZINI:               Right. And so that fits a bit better with some of the legal ethics I was reading about from Professor Grant Gillet. In an article for the Journal of Law in Medicine with Rebecca Babcock he writes “Accountability has shifted in form – it is directed at individuals acting within complex health care contexts rather than isolating a scapegoat or single person who can be blamed.” They also described the ACC Review Tribunal as rigorous, and that warnings to practitioners are considered authoritative. And of course, cases of true negligence can still be pursued in court. So it’s still doing the job…

KATHARINE WALLIS:      Yeah, and people are compensated regardless, you know, and accountability is happening down a different channel.

MIC CAVAZZINI:               You and Grant Gillett both express the idea you can’t legislate for professionalism. So how should professional standards be maintained for the majority of well-intentioned practitioners that won’t be sanctioned by these referrals and complaints and so on?

KATHARINE WALLIS:      Yeah, so certainly for each college, you know, you've got to go through your continuing professional development and keeping up with education, you're keeping up with your sort of quality improvement initiatives, you know, audit, and, you know, feedback and making change to improve things and that kind of thing. So, so that's all happening, down a different channel.

MIC CAVAZZINI:               And the, unfortunately, a lot of this is invisible to the public. Do we have a sense of community perceptions of accountability? Whether they’re happy with the way that  punishments and compensation are doled out.

KATHARINE WALLIS:      I think that there's a really important point, you know, the public perception of accountability and transparency around the systems. Certainly in New Zealand, you know, the whole Medical Council complaints and disciplinary system is set up to protect the public, and disciplinary hearings are open to the public and practitioners names are published, unless there are good reasons to suppress them. You know, when something goes wrong in healthcare, and somebody is injured, patients don't want only to necessarily to be compensated and treated or whatever. You know, they also want to make sure that people in the future are protected, so there are systems in place to stop this happening again, and they do often want, to have their moment in court, so to speak, or the moment in a disciplinary hearing where they can actually see the practitioner and see the practitioner answering questions about the care that they provided. I mean, it's not for everybody, but that that's a really important part of the process for, for other for a lot of people who have been harmed in the system.

MIC CAVAZZINI:               Yeah, this is the idea of different ideas of justice—going back to Grant Gillet, he distinguishes corrective justice from punitive justice. I wonder if the lower rate of disciplinary referrals that you observed might indicate that victims actually feel less need to seek punishment—that they're actually satisfied with outcomes of the process and press any further.

KATHARINE WALLIS:      Yes, I don't know. I don't know that you can make that link very easily, unfortunately. I think the other thing to bear in mind, you know, regarding the punishment issue is that the process itself, regardless of the outcome, can be quite punitive. And is certainly perceived to be so by practitioners on the receiving end of it. Even if they are found not guilty or admonished at the end of the process, they feel thoroughly punished by going through it often. So it's a difficult—there are lots of different sort of things involved aren’t there?

MIC CAVAZZINI:               It’s a brave government that takes responsibility for something like the Accident Compensation Corporation. While it doesn’t provide a perfect conclusion to every adverse incident in healthcare, many creases are being ironed out along the way. One field that is currently left out by the public insurer is obstetrics—it just comes with too much uncontrollable risk and raw emotion. In the UK, for example, maternity claims account for half of the $2.4 billion pounds paid out by the NHS each year, despite making up only ten percent of medicolegal claims.

In fact, 1999 saw the collapse of the second biggest insurer in Australia. HIH had a number of governance problems and overexposure to plummeting stock markets. But as underwriter for Australia’s largest medical defence organisation, it was also battered down by the increasing size and frequency of indemnity claims. To incentivise other companies to stay in medical indemnity, the Commonwealth government offered to pay half the cost of any payouts exceeding $500,000. The Open Disclosure standards and apology laws were also introduced alongside this to better serve public expectations and ideally take some heat out of the courts.

But as we’ve heard over this series of episodes, disclosure of medical error is still patchy after all these years and it’s hard not to look across the Tasman with some envy. Implementation of a no-fault compensation model has been recommended in reviews for the Australian Commonwealth in the 1990s, the early 2000s and as recently as 2011. At that time the Federal Productivity Commission proposed an injury compensation system that would complement the National Disability Insurance Scheme.

The NDIS broadly provides people who acquire a permanent disability with supports to live an ordinary life, but it has been fraught with administrative problems. The agency is under pressure from government to cut costs, while client advocates complain about the sluggish and inequitable dispensation of financial support. One doubts that a sister scheme to provide injury compensation will resurface any time soon after a decade without progress. Here are some final comments from Marie Bismark and Katharine Wallis on the barriers in Australia to adopting a distributive paradigm of medicolegal justice.

MARIE BISMARK:             I think almost every review that looks at medicolegal processes comes to the conclusion that no-fault compensation is one of the most effective and most efficient. I think as we all know, there have been so many complexities and difficulties in the rollout of the NDIS scheme that it has just felt too difficult at this stage to expand the scope of the scheme. As you say, I don’t think it’s going to happen any time soon.

MIC CAVAZZINI:               Interestingly, the ACC also does cover adverse events from vaccinations.

MARIE BISMARK:             Yeah, I was just about to say the one pocket where we do see the potential for some no-fault compensation for injuries relating to the rollout of the COVID vaccine.

MIC CAVAZZINI:               Well, it’s different, isn’t it? The indemnity for GPs, specifically for COVID vaccinations, I might add, that means that the GPs are covered if they get sued by a patient, but it doesn’t mean that the patient can go to the government for compensation; it still forces the patients or the victims to sue for damages, right?

MARIE BISMARK:             I think that’s right that – well, my understanding is that the patient still does need to be able to establish the source of that harm.

MIC CAVAZZINI:               There’s a similar distinction between the compulsory third-party cover you have when you drive a car, which means if you injure another person, they sue you for damages and your insurance pays that. In Queensland, Queensland did go it alone with an Injury Insurance Scheme that is restricted to road accidents so that anyone can claim directly for compensation. But it leaves this weird distinction between the same injury that might be caused in a hospital, or a sporting accident will not be compensated by default, whereas if it happens in a car, it will.

MARIE BISMARK:             Yeah, it is interesting in Australia that we do have Worksafe provisions and transport accident compensation provisions run through different agencies, whereas in New Zealand, it’s the one body ACC that covers you whether you’re at work or on a sports field, or injured at home or injured in a hospital, which provides much more consistency. The phrase that I really like is that doctors and patients are actually allies, and it’s really terrible when the court system positions doctors and patients as adversaries rather than recognising that both groups want a safer healthcare system.

KATHARINE WALLIS:      I think probably the, the big difference in New Zealand is that the money is spent on treatment and rehabilitation for patients, rather than on lawyers fighting it out on the court, and that's quite a substantial change for a country to make.  And Australia just might not want to go there. But I don't know that Australia has got the culture to embrace it and to make those changes. It's much more individualistic, I think, and much more financially-driven system, even the private-public sort of debate. But also the pecuniary drivers in those systems.

There’s a lot of slack in the Australian system as far, as I can see driven in part by the fee-for-service model people are working in, or fee-for-overservicing. And that is far more influential than the malpractice system, I think. You know, and just getting the communication links happening, you know, unbelievable the Australian system, you know, the hospitals hardly talked to the GPs, who hardly talked to the private specialists within a state, let alone nationally or whatever. And if you can improve that, that's going to be a big win.

But the malpractice system certainly does have a role to play you know, leaves its colour, if you like, on your on your day. And I much prefer New Zealand's system, not just the primary care system and the way it's sort of set up, but also the no-fault compensation system, I think it's just a much better system for patients as well.

MIC CAVAZZINI:               Many thanks to Katharine Wallis and Marie Bismark for contributing to this episode of Pomegranate Health. Thanks also to all those who took the time to review drafts of the podcast before it was published. We’re actually looking for new members to join the editorial group for 2022. The role also involves discussion of new story idea and for a given topic suggesting themes to explore and people to interview. This is all done very informally by email, and takes no more than an hour and a half each month. It might be the most fun way for Fellows to earn a few CPD credits but Trainees and listeners from other fields are also very welcome to apply. For an application form, go to racp.edu.au/podcast. It’s right near the top and just asks you to describe your professional affiliations, any prior editorial experience and what you love about each of your favourite podcasts. Please email the form by the end of January to podcast@racp.edu.au along with any other comments or questions.

At the website you’ll also find lots of other great resources developed at the RACP. The College Learning Series has now published many of the hundred lectures mapped out to the paediatric training curriculum. “Hot topic” clinical updates have been added too that only take 15 minutes to watch. You can find professional development courses by searching for eLearning@RACP including a new tool on quality and safety in rural settings. Or you can sign up to the RACP Events Digest to hear about upcoming webinars hosted by every speciality society. Finally, there’s even a place for you to submit external resources you’ve found useful. I hope you like it. I’m Mic Cavazzini.





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19 Jul 2024
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