tag:theconversation.com,2011:/global/topics/medical-indemnity-3985/articlesMedical indemnity – The Conversation2021-07-01T07:00:41Ztag:theconversation.com,2011:article/1637172021-07-01T07:00:41Z2021-07-01T07:00:41ZWhat’s the new COVID vaccine indemnity scheme? Two legal experts explain<figure><img src="https://images.theconversation.com/files/409221/original/file-20210701-20999-1ognx9u.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4985%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Hau Dinh/AP/AAP</span></span></figcaption></figure><p>On Monday night, Prime Minister Scott Morrison announced a new vaccine indemnity scheme.</p>
<p>An indemnity scheme would mean health practitioners who are found liable to pay compensation for any serious adverse events suffered by people receiving COVID vaccines, will have the compensation paid for them by the Commonwealth of Australia.</p>
<p><a href="https://www.abc.net.au/news/2021-07-01/health-experts-politicians-atagi-on-astrazeneca-covid-vaccine/100257946">Morrison also said</a> if people under 60 wish to access to the AstraZeneca vaccine, they can “go and speak to their doctor”.</p>
<p>The media reporting that followed suggests there’s some confusion as to what all this means, for people and health practitioners.</p>
<p>So how does an indemnity scheme work, and does it provide any benefits to people in the very rare event they get a serious adverse reaction to a COVID vaccine?</p>
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<h2>Wait, what was announced?</h2>
<p>Currently, Pfizer is the preferred vaccine for under-60s in Australia.</p>
<p>But the <a href="https://www.pm.gov.au/media/national-cabinet-statement-5">national cabinet media release said</a> “GPs can continue to administer AstraZeneca to Australians under 60 years of age with informed consent”.</p>
<p>The expert panel of immunisation experts which advises the federal government has always said people under 60 can get AstraZeneca if <a href="https://theconversation.com/under-40s-can-ask-their-gp-for-an-astrazeneca-shot-whats-changed-what-are-the-risks-are-there-benefits-163571">the benefits are likely to outweigh the risks</a>, and if they make an informed decision to consent.</p>
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Read more:
<a href="https://theconversation.com/under-40s-can-ask-their-gp-for-an-astrazeneca-shot-whats-changed-what-are-the-risks-are-there-benefits-163571">Under-40s can ask their GP for an AstraZeneca shot. What's changed? What are the risks? Are there benefits?</a>
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<p>The prime minister <a href="https://www.pm.gov.au/media/national-cabinet-statement-5">also said</a> the new COVID-19 vaccine indemnity scheme “will provide confidence to medical practitioners to administer both AstraZeneca and Pfizer vaccines to Australians”.</p>
<p>The proposed indemnity scheme is designed to support health practitioners, and reduce real or perceived barriers to them administering the AstraZeneca vaccine to under-60s.</p>
<p>However most, if not all, relevant health practitioners already have indemnity insurance in place, either through private medical indemnity insurers or through their employers.</p>
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<p>The proposed new vaccine indemnity scheme therefore appears to shift exposure to claims for compensation from the existing insurers to the Commonwealth of Australia. It’s unlikely to prohibit health practitioners being sued, for example, for negligent advice in relation to the risks and benefits of a particular vaccine.</p>
<p>It’s also worth noting this doesn’t just apply to GPs, but other health practitioners too, such as nurses.</p>
<h2>What does the new vaccine indemnity <em>not</em> do?</h2>
<p>The new vaccine indemnity doesn’t provide automatic access to the AstraZeneca vaccine for anyone who simply asks for it.</p>
<p>A health practitioner will use their professional judgement as to whether the AstraZeneca vaccine is suitable for a particular patient.</p>
<p>Some patients may have pre-existing conditions which make them unsuitable, and in those circumstances a health practitioner may well refuse to provide that vaccine.</p>
<p>It’s also worth noting individual health-care practitioners aren’t protected from facing complaints or disciplinary action if they engage in any unsatisfactory professional conduct. Perhaps seriously inappropriate advice or treatment could give rise to disciplinary action.</p>
<h2>Are there new benefits for you?</h2>
<p>Australia doesn’t have a no-fault vaccine injury compensation scheme or bespoke COVID-19 vaccine compensation scheme. Countries such as the <a href="https://www.nejm.org/doi/full/10.1056/NEJMp2034438?query=TOC&ssotoken=">United States</a> and <a href="https://urldefense.com/v3/__https:/ssrn.com/abstract=3654197__;!!NVzLfOphnbDXSw!X0qc2wPTG1R8iaFCWaJdSajYK_oY1JVYBzMGrTH41rNw-naNqBoHaBWljLtDxU-_xrmD$">United Kingdom</a> do have such schemes, even if they are perhaps imperfect.</p>
<p>In these countries and some others, in the very rare instance you have a really bad reaction to a COVID vaccine and, for example suffer a prolonged or permanent disability, you can access compensation.</p>
<p>Some media reports interpreted Australia’s new vaccine indemnity announcement as including such a “no-fault” injury compensation scheme to compensate Australian patients who suffer adverse reactions to COVID-19 vaccines.</p>
<p>Adding to the confusion was that on Tuesday federal Chief Medical Officer Paul Kelly <a href="https://www.phaa.net.au/documents/item/5234">mentioned</a> such a scheme was coming.</p>
<p>Details of the proposed indemnity scheme <a href="https://www.theaustralian.com.au/nation/politics/criticism-grows-over-nofault-covid-compensation-pledge/news-story/17ea3e46153cee87b4c1c3ff2b99078e">have not been released</a>. But the prime minister’s announcement made no direct reference to no-fault compensation.</p>
<p>Without a special vaccine compensation scheme, patients may only get compensation if a health practitioner fails to exercise reasonable care or acts in breach of Australian Consumer Law. Sometimes actions against vaccine manufacturers are also possible.</p>
<p>One exception might be an injury flowing from a vaccination related to someone’s employment. </p>
<p>In other words, compensation almost always requires fault on the part of the health practitioner or the vaccine manufacturer.</p>
<h2>Could I get compensation without a vaccine injury compensation scheme in place?</h2>
<p>There are existing pathways for people to obtain financial assistance when there’s been no fault on the part of the health practitioner advising or administering a vaccine.</p>
<p>Subject to meeting eligibility requirements, people may obtain sickness benefits from Centrelink, or in cases of persisting disability, a disability support person.</p>
<p>Financial supports under the National Disability Insurance Scheme are also available, but only for people under 65 who suffer significant permanent disabilities.</p>
<p>In the very rare event a vaccine causes someone to die, accessing assistance for their dependants is somewhat more complex.</p>
<h2>What should happen next?</h2>
<p>The new vaccine indemnity may encourage health practitioners to provide the AstraZeneca vaccine more broadly, by reducing financial risks to them and their insurers.</p>
<p>Most people seeking vaccination will be purely motivated by the health benefits. But some people might like the idea of being compensated in the very rare instance something goes badly wrong. One group of researchers from the UK <a href="https://www.biicl.org/documents/10510_briefing_note_for_cv-19_vaccine_acceptability_-_11_nov_20_-_final.pdf">argue</a> that a better financial safety net for patients would encourage more people to seek vaccination, more quickly. Whether this will happen in Australia is a question the national cabinet could consider. </p>
<p>We will know more when the details of the new vaccine indemnity scheme are released. It seems unlikely at this stage but perhaps we’ll be pleasantly surprised by the inclusion of a benefit scheme for anyone who suffers a serious adverse event from a COVID vaccine.</p><img src="https://counter.theconversation.com/content/163717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill Madden is also a lawyer in private practice based in Sydney.</span></em></p><p class="fine-print"><em><span>Tina Cockburn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>At the moment, the scheme only applies to health practitioners, not patients.Bill Madden, Adjunct Professor, Australian Centre for Health Law Research, School of Law, Queensland University of TechnologyTina Cockburn, Associate Professor, Australian Centre for Health Law Research, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1478462020-10-15T06:19:58Z2020-10-15T06:19:58ZWho pays compensation if a COVID-19 vaccine has rare side-effects? Here’s the little we know about Australia’s new deal<figure><img src="https://images.theconversation.com/files/363573/original/file-20201015-23-y5622.jpg?ixlib=rb-1.1.0&rect=0%2C6%2C1022%2C688&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/vaccine-syringe-vector-background-template-bottles-1744714103">Shutterstock</a></span></figcaption></figure><p>In last week’s federal budget the Australian government <a href="https://www.smh.com.au/politics/federal/morrison-government-grants-indemnity-for-covid-19-vaccine-side-effects-20201008-p5636o.html">announced</a> it had given the suppliers of two COVID-19 vaccines indemnity against liability for rare side-effects.</p>
<p>Although details are unclear, it appears the government would foot the bill for compensation if a member of the public wins legal action against the drug company.</p>
<p>This is in contrast to <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0233334">25 other countries</a> with no-fault compensation schemes for rare vaccine side-effects.</p>
<p>Here’s the little we know about Australia’s latest indemnity deal and what we could be doing better.</p>
<h2>What do we know about Australia’s new deal?</h2>
<p>The deal relates to <a href="https://theconversation.com/putting-our-money-on-two-covid-vaccines-is-better-than-one-why-australias-latest-vaccine-deal-makes-sense-145693">two vaccines</a> the government had previously announced it would supply, should clinical trials prove successful.</p>
<p>These are the University of Oxford vaccine, from AstraZeneca, and the University of Queensland vaccine, from Seqirus (part of CSL).</p>
<p>However, it is not entirely clear what this indemnity deal means in practice. The budget papers <a href="https://budget.gov.au/2020-21/content/bp1/download/bp1_bs9_w.pdf">say</a> the government will cover:</p>
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<p>certain liabilities that could result from the use of the vaccine.</p>
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<p>The government <a href="https://thenewdaily.com.au/news/2020/10/09/government-grants-covid-19/">considers</a> further details “commercial in confidence”. </p>
<p>For instance, we don’t know how serious or disabling a side-effect would have to be to qualify or whether there is any cap on the amount of compensation. </p>
<p>We also don’t know what would happen if there were errors involved, or contaminants introduced, while manufacturing the vaccine. These would still be the company’s liability, but it may be hard to determine where boundaries lie.</p>
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Read more:
<a href="https://theconversation.com/putting-our-money-on-two-covid-vaccines-is-better-than-one-why-australias-latest-vaccine-deal-makes-sense-145693">Putting our money on two COVID vaccines is better than one: why Australia's latest vaccine deal makes sense</a>
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<h2>How unusual is this?</h2>
<p>This deal is not entirely new or unexpected. The government has <a href="https://budget.gov.au/2020-21/content/bp1/download/bp1_bs9_w.pdf">provided some indemnity</a> to pharmaceutical companies that make vaccines against smallpox and influenza.</p>
<p>The governments of many other countries have also agreed to indemnify COVID-19 vaccine manufacturers, <a href="https://www.rt.com/news/496801-pharma-not-accountable-vaccine-effect/%20and%20https://www.reuters.com/article/us-health-coronavirus-vaccines-liability/covid-19-era-highlights-u-s-black-hole-compensation-fund-for-pandemic-vaccine-injuries-idUSKBN25H1E8">including</a> governments in the UK, US <a href="https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1662">and the</a> <a href="https://www.afr.com/politics/federal/vast-majority-of-americans-distrust-trump-on-virus-poll-20200922-p55xv6">European Union</a>. </p>
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<p>The manufacturers <a href="https://www.europeanpharmaceuticalreview.com/news/125517/astrazeneca-receives-protection-from-covid-19-vaccine-liability-claims-report-says/">believe</a> that as the use of their vaccine is for the benefit of society, they should not be held financially accountable for any consequences from a vaccine reaction.</p>
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Read more:
<a href="https://theconversation.com/big-pharmas-safety-pledge-isnt-enough-to-build-public-confidence-in-covid-19-vaccine-heres-what-will-145822">Big pharma's safety pledge isn't enough to build public confidence in COVID-19 vaccine – here's what will</a>
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<h2>So what does this mean for the public?</h2>
<p>If a person in Australia believes they have been injured by a vaccine, including future COVID-19 vaccines, they will need to pursue compensation through the legal system.</p>
<p>Under the latest agreement, it would appear the government, rather than the drug company, would pay that compensation, should the person win their case.</p>
<p>However this is not ideal. The person still has to engage with the legal system, which is both costly and complex, and there’s no guarantee of success. </p>
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<a href="https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Woman consulting professional looking woman in office" src="https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/363570/original/file-20201015-13-1ef3dy7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Under the latest indemnity deal, it seems that people would still need to go through the legal system, with no guarantee of success.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/serious-professional-female-advisor-consulting-client-1256570848">www.shutterstock.com</a></span>
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<p>Compensation may not even be possible via our legal system. That’s because in most cases, it will be difficult to show in court a serious side-effect was due to a fault in the vaccine composition or negligence in the way it was administered.</p>
<p>So in Australia, people with a vaccine injury, either COVID-19 or other vaccine, will likely bear the costs of their injury by themselves, and seek treatment by our publicly-funded or private health systems. </p>
<p>The National Disability Insurance Scheme helps fund therapies for people with a permanent and significant disability but <a href="https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche">does not cover</a> temporary vaccine-related injuries.</p>
<p>Participants in COVID-19 vaccine clinical trials <a href="https://medicinesaustralia.com.au/policy/clinical-trials/indemity-and-compensation-guidelines/">can be compensated</a> for temporary and permanent vaccine injuries.</p>
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Read more:
<a href="https://theconversation.com/the-budget-assumes-a-covid-19-vaccine-becomes-available-next-year-is-this-feasible-147557">The budget assumes a COVID-19 vaccine becomes available next year. Is this feasible?</a>
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<h2>What’s happening overseas?</h2>
<p>In the US, people with a rare but serious reaction to a COVID-19 vaccine will be able to access a <a href="https://www.hrsa.gov/cicp">special compensation scheme</a>. This is designed to provide compensation for the use of COVID-19 pandemic medications and vaccines. </p>
<p>However, applicants only have one year from the date they had the vaccine or medicine to request benefits.</p>
<p>The US already has <a href="https://www.hrsa.gov/vaccine-compensation/index.html">a vaccine compensation scheme</a> for vaccines other than COVID-19. This is an example of a <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0233334">no-fault</a> compensation scheme. These compensate for specific vaccine reactions, without having to go to court to prove the vaccine manufacturer is liable.</p>
<p>Australia, in contrast to 25 countries including the US, UK and New Zealand, <a href="https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche">does not have</a> a no-fault vaccine compensation scheme, and does not have the equivalent of the US COVID-19 vaccine compensation scheme.</p>
<h2>How would a no-fault system work?</h2>
<p>There are numerous benefits to a no-fault vaccine compensation system. These include simplified access to compensation, and avoiding a lengthy, costly and complex encounter with the legal system, with no guarantee of success.</p>
<p>Most are government funded. The US government funds it by a flat rate of <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0233334">US$0.75</a> for each disease prevented for each vaccine dose.</p>
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<p>Finland and Sweden fund their programs via insurance payments from pharmaceutical companies marketing their products there. </p>
<p>The <a href="https://www.acc.co.nz/">New Zealand scheme</a> includes compensation for vaccine-related injuries, as well as for accidents and treatment injuries. This is funded through a combination of general taxation, and levies collected from employee earnings, businesses, vehicle licensing and fuel. </p>
<p>However, compensation awarded via such no-fault schemes is usually lower than you would receive after a successful liability lawsuit.</p>
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Read more:
<a href="https://theconversation.com/were-all-at-risk-from-scary-medicine-side-effects-but-we-have-to-weigh-the-risks-with-the-benefits-65029">We're all at risk from scary medicine side effects, but we have to weigh the risks with the benefits</a>
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<h2>Where to next?</h2>
<p>To encourage people to receive COVID-19 vaccines for the benefit of the entire community, we need compensation schemes to be in place if there is a rare but serious side-effect. </p>
<p>Should options to increase vaccine uptake include mandates or penalties — such as employment or travel restrictions if not vaccinated — this would make a no-fault vaccine compensation scheme even more essential. </p>
<p>Although it is important manufacturers receive indemnity for “certain liabilities”, we still need to look after our community. That means a compensation system the public can easily access and which provides appropriate support.</p><img src="https://counter.theconversation.com/content/147846/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Wood receives funding from the NHMRC for a Career Development Fellowship</span></em></p>Details are sketchy. But it looks like people would still need to go through the legal system to get compensation. There are better ways.Nicholas Wood, Associate Professor, Discipline of Childhood and Adolescent Health, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/338452014-12-22T19:18:59Z2014-12-22T19:18:59ZGreat expectations: our naive optimism about medical care<figure><img src="https://images.theconversation.com/files/67327/original/image-20141216-24294-ifo3h9.jpg?ixlib=rb-1.1.0&rect=0%2C310%2C3510%2C2306&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Most people overestimate the benefits and underestimate the harms of medical intervention. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/cannnela/4614340819">Barbara M./Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><blockquote>
<p>“It might do me some good and it won’t hurt to give it a go.”</p>
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<p>How often have you heard a phrase like this?</p>
<p>Most people have naïve optimism about medical care. That’s the finding of a systematic review of all available research on common medical treatments we <a href="http://archinte.jamanetwork.com/article.aspx?articleid=2038981&resultClick=1">published</a> today in the journal JAMA Internal Medicine.</p>
<p>We set out to synthesise all the research to date that asked people to quantify the benefits, and/or harms, of common medical treatments, tests and screens (where people are tested for a disease without any symptoms or signs). We also aimed to compare, where possible, people’s expectations with the actual benefits and harms that are derived from research. </p>
<p>Most screening studies were about cancer screening and conclusions were similar regardless of the cancer of focus (breast, cervical, prostate, bowel). </p>
<p>Expectations for various treatments had been studied and included surgery (such as hip and knee replacement, back surgery, cataract surgery), medications (such as those for inflammatory bowel disease, osteoporosis, statins for cardiovascular disease), and other things like cardiopulmonary resuscitation (CPR). </p>
<p>This was a big search: we screened over 15,000 papers to find the 35 studies which met our inclusion criteria. Together these had studied over 27,000 people. </p>
<p>In the majority of studies, most people overestimated benefits and underestimated the harms. There was only one study where the majority of participants underestimated the benefit and one where the majority overestimated the harm. Across most studies, the proportion of people who correctly estimated intervention benefits and harms was generally low.</p>
<p>In other words, people appear to have set a halo around medical care, expecting it to deliver better outcomes than is reality. In marketing terms, we clinicians have a dream sell: our “product” is thought to be far better than it really is. </p>
<p>For the most part, this finding was echoed across various interventions, settings (primary care and hospitals), and countries. </p>
<p>The first question, of course, is why do people have such great expectations about medical management? The answers can only be speculative. </p>
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<span class="caption">Why are we so optimistic about medical care? The answers may be patient-related, or clinician-related.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/soozed/9877628084">soozed/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>There may be patient-related factors, such as: assumptions that more health care is better; optimistic bias (when individuals perceive that are at less risk than their peers); and unrealistic expectations may allow psychological needs such as hope and reassurance to be met. </p>
<p>Over-selling is something we come to expect in everyday marketing transactions and we are used to wearing a protective shield of scepticism, if not downright cynicism. But we seem to be generally less sceptical of medical care.</p>
<p>There are also probably clinician-related reasons, such as: clinicians wanting to convey hope and encouragement; the <a href="http://www.bmj.com/content/328/7438/474">strong drive</a> to do something rather than nothing, and the related fear of litigation; and clinicians themselves sometimes being unaware of the true effectiveness or benefit-harm trade-offs of interventions. </p>
<p>But there may also be more subtle factors such as the regression-to-the-mean-effect. This means that as even when an intervention is ineffective, clinicians often see patients improve anyway and this can lead to the false belief that the intervention provided was responsible for the improvement.</p>
<p>Greed on the part of some clinicians who are less scrupulous is probably involved too, especially in largely fee-for-service environments. </p>
<p>But clinicians’ enthusiasm for their speciality is also likely to be a larger contributor. To the man with a hammer in his hand, the world looks like nails. Surgeons are more likely to recommend surgery, radiotherapists radiation oncology, physiotherapists to suggest physiotherapy, and so on. </p>
<p>The next question is does this matter? </p>
<p>Very much so. Overly optimistic expectations undoubtedly contribute to the ever increasing use of health services and the growing problem of over-diagnosis, where disease labels are given even though the latent disease might not have ever caused symptoms, and over-treatment, where unnecessary treatments given. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/67331/original/image-20141216-24294-ifkj6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Every intervention has benefits and harms and both should be acknowledged and communicated.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/tojosan/4308897037">Tojosan/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>There seems to be a <a href="http://www.ncbi.nlm.nih.gov/pubmed/17353491">vicious cycle</a> in which people have overly optimistic expectations about interventions and request them from their clinicians, who then provide them because it was requested, even if doing so causes the clinician discomfort. Receiving the intervention subsequently reinforces people’s belief that the intervention is beneficial and necessary and so the cycle continues. </p>
<p>Many payment systems favour providing an intervention rather than “just” talking with patients and there is the efficiency appeal of ordering a test or writing a prescription rather than taking the time and effort to explain to a patient why it may not be needed.</p>
<p>A third question is what can be done to counteract these unrealistic expectations? </p>
<p>Many groups have a role to play. Every intervention has benefits and harms and both should be acknowledged and communicated. This applies to: </p>
<ul>
<li><strong>researchers</strong> – harms are <a href="http://www.bmj.com/content/348/bmj.f7668">notoriously under-reported</a>, and even in our review, many more studies assessed expectations of benefit than harm, or benefit and harm</li>
<li><strong>journalists</strong> – media stories <a href="http://www.nejm.org/doi/full/10.1056/NEJM200006013422206">often portray</a> interventions in a misleading way</li>
<li><strong>health services and the pharmaceutical industry</strong> – for example, <a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1388137/">screening invitations</a> and <a href="http://www.vaoutcomes.org/wp-content/uploads/2012/11/drug_ads.pdf">drug advertisements</a> often present information tilted towards or only about the benefits</li>
<li><strong>clinicians</strong> – conversations between patients and clinicians tend to focus on the benefits of interventions and may not address, or downplay, the harms. </li>
</ul>
<p>Patients, and indeed any individual who is considering a screen, test, or treatment, can also be involved in the solution. Beyond being aware of this tendency to assume that interventions help a lot and harm little, asking their clinician three questions before consenting to any intervention is a good habit to acquire. They are: </p>
<ul>
<li>what are my options?</li>
<li>what are the possible benefits and harms of each option?</li>
<li><a href="http://www.askshareknow.com.au">how likely</a> is it that each of those benefits and harms will happen to me?</li>
</ul>
<p>Asking these questions can trigger a conversation between clinician and patient that hopefully enables an informed decision to be made. </p>
<p>Similarly, the <a href="http://www.choosingwisely.org">Choosing Wisely campaign</a> underway in many countries (and on its way to Australia) provides evidence-based information for the public about interventions that are commonly used, yet may be unnecessary, and encourages a conversation between clinicians and patients. </p>
<p>Modern medicine is slowly moving towards a commitment to true partnerships between clinicians and their patients. Realising that people often come to consultations with preconceptions and expectations is a step closer to achieving this. </p>
<p>In the process of negotiating the best clinical option, clinicians should elicit the patient’s expectations and preconceptions about what they are expecting from the intervention, discuss any misperceptions, and provide accurate information about the benefits and harms of each management option. </p>
<p>Only then can any genuine “<a href="https://www.mja.com.au/journal/2014/201/1/shared-decision-making-what-do-clinicians-need-know-and-why-should-they-bother">shared decision making</a>” start to occur and perhaps the impact of these great expectations lessened.</p><img src="https://counter.theconversation.com/content/33845/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tammy Hoffmann receives research funding from the NHMRC and book royalties for evidence-based practice books. </span></em></p><p class="fine-print"><em><span>Chris Del Mar receives research funding from the NHMRC, and book royalties.</span></em></p>“It might do me some good and it won’t hurt to give it a go.” How often have you heard a phrase like this? Most people have naïve optimism about medical care. That’s the finding of a systematic review…Tammy Hoffmann, A/Prof Clinical Epidemiology, Bond University; NHMRC Research Fellow, The University of QueenslandChris Del Mar, Professor of Public Health, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/253292014-05-04T20:36:02Z2014-05-04T20:36:02ZWhy don’t we create a no-fault scheme for medical injuries?<figure><img src="https://images.theconversation.com/files/47362/original/mby6bxkj-1398834072.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A no-fault compensation scheme is already widely used for third-party motor vehicle accident claims.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/vermininc/3551483636">Paul Hocksenar/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Lost among the many provocative recommendations of last week’s National Commission of Audit report was a proposal to phase out the Commonwealth’s A$100 million subsidy of <a href="http://www.ncoa.gov.au/report/appendix-vol-2/10-16-medical-indemnity.html">medical indemnity insurance premiums</a>.</p>
<p>The federal subsidy scheme started in 2003, in response to insurance market failure in the preceding years, particularly the stunning collapses of HIH Insurance in 2001 and United Medical in 2002. These threatened the continued delivery of medical services, especially in areas at risk of high-cost claims.</p>
<p>In keeping with the general tenor of the report, which considered the cost of everything and the value of nothing, it found the insurance market was sufficiently recovered for federal subsidies to cease.</p>
<p>Unfortunately, no consideration was given to root-and-branch reform of the current fault-based approach for compensating people injured in the course of medical treatment, nor whether the existing system works effectively and efficiently in the interests of patients, doctors and the society at large.</p>
<h2>Changing our approach</h2>
<p>Australians have long accepted no-fault compensation schemes for injuries in the workplace and from motor vehicles, it’s <a href="https://www.mja.com.au/journal/2012/197/5/no-fault-compensation-system-medical-injury-long-overdue">time we did the same</a> for medical injuries.</p>
<p>A no-fault compensation scheme is one in which accidents and injuries are regarded as inevitable, and the emphasis is on compensating victims for related expenses – without anyone having to enter the civil justice system and proving another party is liable for damages. This system is already widely used for third-party motor vehicle accident and workers compensation claims.</p>
<p>Despite a recommendation for this kind of insurance by the Woodhouse Committee 40 years ago, and a mention in the <a href="http://www.pc.gov.au/projects/inquiry/disability-support/report">2011 Productivity Commission report</a> heralding the national disability scheme, there hasn’t been serious recent examination of the desirability of introducing a comprehensive no-fault compensation system for medical injuries.</p>
<p>Other developed countries, including New Zealand, Sweden, Finland, Norway, Denmark and France, and some American states, already have such systems. Australia could learn from their experiences to design an effective and efficient system that would benefit patients, health professionals and the health-care system.</p>
<h2>Bad for the injured</h2>
<p>Our current fault-based system for handling claims of alleged medical injury requires people pursuing damages to prove negligence in the courts. The process is inefficient and stressful for all concerned, and the costs are estimated to represent <a href="http://www.pc.gov.au/__data/assets/pdf_file/0015/111291/20-disability-support-chapter17.pdf">half of the final court settlements</a>. </p>
<p>Cases can take years to be settled or decided, denying claimants early access to necessary care and rehabilitation. Expert hired witnesses, some of dubious professional status, are called upon because the busiest specialists are reluctant to become involved in what can be a time-consuming and intimidating exercise.</p>
<p>And these aren’t the only weaknesses in the existing system. Someone who has clearly suffered a medical injury may be unable to identify the individual or entity legally responsible, or be unable to prove negligence in court.</p>
<p>What’s more, the final outcome may be unsatisfactory even if a claimant succeeds. Lump sum damages (the usual form settlement) may not cover the long-term costs of care and other expenses because of inaccurate actuarial predictions, poor investment, mismanagement or misuse.</p>
<h2>Bad for medical care</h2>
<p>While it’s <a href="https://www.mja.com.au/journal/2012/197/5/how-best-do-we-compensate-accidental-medical-injuries">sometimes argued (paywalled)</a> that the threat of negligence claims helps reduce medical errors and maintain high standards of clinical care, there’s no objective empirical evidence for this. </p>
<p>Indeed, other researchers have pointed out that since <a href="http://www.cambridge.org/ve/academic/subjects/law/medico-legal-bioethics-and-health-law/errors-medicine-and-law?format=HB">medical errors are rarely intentional</a>, it’s unlikely the <a href="http://www.sciencedirect.com/science/article/pii/S0277953607004741">threat of negligence claims act as a deterrent</a>.</p>
<p>But there’s clear evidence that the threat of a law suit increases medical costs by promoting <a href="http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(06)69045-4/abstract">defensive medicine</a> and <a href="https://www.mja.com.au/journal/2010/193/10/perceived-practice-change-australian-doctors-result-medicolegal-concerns">over-servicing</a>, leading to higher health-care costs. </p>
<p><a href="https://jama.jamanetwork.com/article.aspx?articleid=193992">There’s also evidence</a> that the threat of legal action discourages doctors from reporting adverse events.</p>
<h2>Advantages for professionals</h2>
<p>The potential benefits of a no-fault insurance system includes more complete coverage of all injured persons regardless of the particular circumstances of injury, predictable care and support over a person’s lifetime, and a more efficient system overall.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/47363/original/sdn8dtjq-1398834234.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Only a small number of negligence claims actually involve poorly performing doctors.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/stmaartenpiloot/6848014309">Peter van Marion/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Such a scheme could change doctors’ mindset around issues of patient safety, learning from mistakes (their own and others) and <a href="https://jama.jamanetwork.com/article.aspx?articleid=193992">preventing error</a>, by routinely collecting information about medical injuries and feeding it back through education programs.</p>
<p>As any model chosen is likely to be non-adversarial and involve panels of experts, a no-fault scheme will also do away with the problem of hearing from poorly qualified or biased expert witnesses.</p>
<h2>Potential pitfalls</h2>
<p>Those opposed to the scheme <a href="https://www.mja.com.au/journal/2012/197/5/how-best-do-we-compensate-accidental-medical-injuries">sometimes argue (paywalled)</a> there’s a risk of creating an expensive bureaucracy. And that system administrators may be susceptible to direction from government to reduce benefits or alter coverage. </p>
<p>While these are valid concerns — and have been <a href="http://www.smh.com.au/nsw/workcover-changes-disadvantage-amputees-inquiry-hears-20140321-358l1.html#ixzz2wbCAXHNp">manifest in some state workers compensation systems</a> — they can be addressed by designing a system that builds on the experience of other nations. </p>
<p>There’s also some concern that such a scheme may lead to more claims. Whether this happens will depend on precisely what it covers, why people make and do not make claims and the national culture of seeking compensation. A properly designed scheme would guard against this as well.</p>
<p>A no-fault scheme could potentially prevent or delay the identification of problem doctors, but only a small number of negligence claims actually involve poorly performing doctors. </p>
<p>Similarly, only a small proportion of disciplinary actions by medical tribunals concern physical harm to patients, even in jurisdictions that require all negligence cases to be notified to the medical board. </p>
<p>While the long-standing Scandinavian systems are not identical, they have all abandoned the notion of negligence and instead make decisions based on the concept of “avoidability” — that is, whether an injury could have been avoided by good medical practice. Allegations of poor professional performance are dealt with by separate assessment and disciplinary procedures. </p>
<h2>A better way</h2>
<p>Moving to a no-fault system will not be simple, of course. Difficult judgements will need to be made about whether it should compensate for pain and suffering, whether any or all common law rights should be extinguished and whether there should be upper and lower limits. </p>
<p>The exact nature of any scheme, its governance, and controls to minimise waste and fraud will need close and continuing attention. Fortunately, these are all matters about which we can learn from the experiences of other countries.</p>
<p>Whether an injury results from a motor accident, an accident at work or an accident in the course of medical treatment, any insurance system should focus on the ensuing needs of the injured person, without requiring litigation to prove that negligence was involved. </p>
<p>With our increasing emphasis on patient safety and the need to encourage doctors to report adverse events and “near misses”, the time is surely right to move to a no-fault system. </p><img src="https://counter.theconversation.com/content/25329/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lost among the many provocative recommendations of last week’s National Commission of Audit report was a proposal to phase out the Commonwealth’s A$100 million subsidy of medical indemnity insurance premiums…David Weisbrot, Emeritus Professor of Law and Honorary Professor of Medicine , University of SydneyKerry Breen, Retired Physician & Adjunct Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/223062014-01-24T03:28:08Z2014-01-24T03:28:08ZHealth-care providers – a different class of criminal?<figure><img src="https://images.theconversation.com/files/39805/original/yyb98bsq-1390522905.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Our legal system already has provisions in place capable of responding to criminal conduct by health-care workers.</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>Should Australian health-care workers face criminal penalties if they wilfully or recklessly neglect or mistreat patients? The United Kingdom is currently <a href="http://www/bmj/com/cgi/doi/10.1136/bmj.g133">grappling with this question</a> after systemic failures in care and treatment of patients at the <a href="http://www.midstaffs.nhs.uk/">Mid Staffordshire NHS Foundation Trust Hospital</a> (MSNFTH) contributed to radically higher death rates than in comparable hospitals elsewhere in the UK.</p>
<p>Australia’s recent experience with the trials of former Bega gynaecologist <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/57.html">Graeme Reeves</a> and Bundaberg surgeon <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/29.html">Jayant Patel</a> are likely to see similar proposals mooted here. But is this the best way of ensuring patient safety?</p>
<p>Provisions criminalising wilful or reckless neglect or mistreatment of mentally ill and child patients already exist in the UK. Supporters of recommendations in the <a href="https://www.gov.uk/government/publications/berwick-review-into-patient-safety">Berwick review </a> and <a href="http://www.midstaffspublicinquiry.com/report">Francis enquiry</a> into UK patient safety argue that these sanctions should be extended to cover all patients. This would plug a hole in the existing legal framework, they say, where a gross, but unintentional, error can attract criminal sanctions, but a wilful or reckless act or omission cannot. </p>
<p>The Australian regime differs from the UK. In the most serious cases, practitioners can be charged with criminal offences. More commonly, claims of negligence or misconduct are dealt with by professional disciplinary tribunals, or as civil claim in negligence or trespass.</p>
<p>Our forthcoming research examining cases in the UK and Australia where health professionals have been charged with these offences reveals that the trials are long and complex, with low conviction rates, frequent appeals, and comparatively light penalties. </p>
<p>Furthermore, the penalties fail to distinguish between a defendant who made a decision to act – or not act – in a way that was recklessly or wilfully negligent, and a defendant who wilfully or recklessly failed to make a decision about their course of action – sticking their heads in the sand, rather than facing the circumstances.</p>
<p>This is particularly relevant in the context of patients who have given specific instructions, such as <a href="https://theconversation.com/planning-your-endgame-advance-care-directives-4250">advanced care directives</a> (AD), in anticipation of their future care. A practitioner who is aware of a “do not resuscitate” clause in a patient’s AD, and follows the patient’s wishes, could be exposed to the same criminal sanctions as a practitioner who simply refuses to acknowledge that a patient requires resuscitation, panics, or withholds resuscitation regardless of patient wishes. </p>
<p>Such a law is likely to see practitioners engage in defensive medicine, or behave paternalistically, providing futile treatment in contravention of patient wishes and eroding patient autonomy.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/39806/original/btrjhz85-1390523224.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Whistleblowers who report potential harms need greater protections.</span>
<span class="attribution"><span class="source">Image from shutterstock.com</span></span>
</figcaption>
</figure>
<p>Should health-care providers even be singled out in criminalising this type of conduct? There are many other examples of employees who, if they wilfully or recklessly act or fail to act, can potentially maim or kill many people. Bus drivers, safety inspectors, pilots and engineers are a few that spring to mind. </p>
<p>As the <a href="http://www.brisbanetimes.com.au/queensland/jayant-patel-finally-leaves-queensland-20131122-2y0aq.html">Patel</a> and <a href="http://www.smh.com.au/nsw/butcher-of-bega-graeme-reeves-released-from-jail-20131228-300fo.html">Reeves</a> cases show, health-care providers who act criminally in the course of providing health care are not above the law. Charges of assault and battery, manslaughter, sexual assault, criminal negligence, and fraud can still be laid. </p>
<p>In the UK, the number of doctors charged with manslaughter has <a href="http://jrs.sagepub.com/content/99/6/309.full">soared</a> since the 1990s. Prosecution generates headlines but doesn’t necessarily improve health. That’s because legal requirements for conviction often can’t be met. It’s also because it fosters <a href="http://qje.oxfordjournals.org/content/111/2/353.full.pdf">defensive medicine</a> that is not in the interests of individual patients or the overall health system. We should be wary about demonising doctors and other health-care workers.</p>
<p>The greatest limitation on these laws in terms of achieving patient safety objectives is their focus on harms – the “hits” – at the expense of the “near misses”. It is these “near misses” which allow health-care facilities to respond to safety issues proactively – ideally <em>before</em> anyone is harmed. Without a harm – a dead or injured patient – there can be no offence. </p>
<p>Criminalisation without adequate support for reporting, complaint resolution, and accountability and transparency creates a culture of fear and cover-up within health care. </p>
<p>A more reasoned approach would be to <a href="https://web.archive.org/web/20120320065040/http://www.qphci.qld.gov.au/Default.htm">increase protections for whistleblowers and enhance mandatory reporting</a> of safety breaches. We should ensure that independent statutory authorities are empowered and resourced to conduct own motion enquiries and thorough investigations of complaints, reporting direct to parliament, rather than a minister. </p>
<p>Finally, criminalisation of this type could potentially free employers from liability for the conduct of their employee health-care workers on the basis that the conduct was criminal. </p>
<p>Employers have a responsibility to supervise what goes on in their hospitals. Dysfunctional reporting and quality assurance procedures in a culture focused on financial targets were identified as significant factors in the harm at MSNFTH. Criminalisation of the kind proposed would not have prevented the harm, nor will it bring back those patients who died, or reverse the harms suffered by others. </p>
<p>Australia is yet to experience a scandal on the scale of MSNFTH. To avoid it, a better strategy would be to ensure that our regime emphasises systemic improvement in health-service delivery rather than being driven by moral panics founded on perceptions that every incident has someone who should be punished – preferably with incarceration. </p>
<p>Our legal system already has provisions in place capable of responding to criminal conduct by health-care workers; creating a separate class of offences specifically targeting health-care workers is unlikely to improve patient safety. </p><img src="https://counter.theconversation.com/content/22306/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Should Australian health-care workers face criminal penalties if they wilfully or recklessly neglect or mistreat patients? The United Kingdom is currently grappling with this question after systemic failures…Wendy Bonython, Assistant Professor, School of Law- Torts, Health and Biotechnology, University of CanberraBruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/136392013-04-23T04:38:11Z2013-04-23T04:38:11ZDrawing the line on doctors’ responsibility for patients<figure><img src="https://images.theconversation.com/files/22762/original/9mdb6236-1366677869.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doctors are not morally obliged to ensure patients follow their advice</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>The <a href="http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=164069">NSW Supreme Court decision</a> to overturn damages awarded to an obese man whose doctor failed to refer him for specialist care to help him lose weight has been widely welcomed by medical and legal experts. </p>
<p>The appeal is a win for patient autonomy and will hopefully avoid a rise in doctors practising defensive medicine: ordering more tests, referrals and follow-ups for fear of litigation.</p>
<h2>The case</h2>
<p>In December 2012, a <a href="http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=162435">trial judge found</a> that Dr Emmanuel Varipatis was negligent in his treatment of Luis Almario because he had failed to refer Almario for obesity treatment. </p>
<p>Varipatis provided Almario with medical care between August 1997 and February 2011. Almario was severely overweight during this time and developed a fatty liver, followed by <a href="http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Liver_disease_cirrhosis">cirrhosis</a> (liver disease) and then cancer of the liver. </p>
<p>Almario claimed the liver cancer could have been prevented had Varipatis referred him either to an obesity clinic or for bariatric surgery. The trial judge found Varipatis negligent for this failure and awarded Almario $364,372. </p>
<p>The judgement has been overturned <a href="http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=164069">on appeal</a>, <a href="http://billmaddens.wordpress.com/">on grounds including</a> evidence that, in 1998, GPs would not have referred patients such as Almario to a bariatric surgeon, and that referral to an obesity clinic would have been declined by Almario, or would not have altered his clinical course.</p>
<h2>A matter of ethics</h2>
<p>The decision highlights some of the ethical limits on doctors’ duty of care. How far should GPs go in trying to persuade, cajole, manipulate or coerce patients into exercising more, stopping smoking, drinking less alcohol or losing weight? </p>
<p>Beneficence, or the duty to act in patients’ best interest, is the moral foundation of duty of care. Beneficence requires doctors to protect and promote patients’ health interests – to provide information about diagnoses and treatment options, and to encourage decisions that promote good health. </p>
<p>But it can’t be an open-ended duty. Doctors are not morally obliged to ensure patients follow their advice; they cannot follow patients to the supermarket or bottle shop to monitor their purchases, or insist they go to the gym or walk the dog. To do so would be unacceptably paternalistic and completely impractical. </p>
<p>Treating adults as unable to make or implement decisions implies that doctors have all the right answers and the role of patients is just to follow orders. One of medical ethics’ major contributions to clinical practice is mandating the right of patients to make their own decisions. </p>
<p>It doesn’t matter if a decision is foolish or will harm health. Respect for patient autonomy demands that adequately informed, competent patients be free to make their own health-care decisions. </p>
<p>The Court of Appeal established that Almario had been told on multiple occasions that he needed to lose weight to avoid more serious health problems. It also established that, as he had failed to act on a previous referral to an obesity clinic, there was no reason to think that he would have accepted a new referral from Varipatis. </p>
<p>As a competent adult, Almario was free to accept or decline medical advice, whatever the health consequences.</p>
<h2>In the way you say it?</h2>
<p>Trying to specify the moral limits of doctors’ duty of care is ethical challenging. Documented information about what a patient was told says nothing about the quality of the doctor-patient interaction. Duty of care may well come down to how well the health risks were communicated – and whether the information was delivered with enthusiasm, boredom or resignation.</p>
<p>Indeed, when it comes to difficult-to-control patient behaviours, such as drinking alcohol, injecting drugs, smoking cigarettes or over-eating, our understanding of when and whether patients are making competent decisions is still unclear. And there are no easy answers for practitioners caring for patients with ongoing health problems related to these so-called “lifestyle choices”.</p>
<p>The effectiveness of medical advice may lie in the quality of communication and the doctor-patient relationship, as much as in the content of advice. These are matters the appeal ruling is silent on, but they are the moral fabric of health care. </p>
<p>While the law may be more black and white than ethics, the case isn’t over yet; Almario’s lawyers have indicated that they are considering fighting the appeal. Whatever the outcome of the challenge, the law will always be a blunt instrument for measuring the quality of the relationship between a doctor and a patient. </p><img src="https://counter.theconversation.com/content/13639/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wendy Rogers does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The NSW Supreme Court decision to overturn damages awarded to an obese man whose doctor failed to refer him for specialist care to help him lose weight has been widely welcomed by medical and legal experts…Wendy Rogers, Professor in Clinical Ethics (CoRE), Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/121662013-02-27T03:30:28Z2013-02-27T03:30:28ZHow was a drug-addicted doctor with hep C able to infect his patients?<figure><img src="https://images.theconversation.com/files/20593/original/kpcjnrtj-1361771745.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anaesthetist James Latham Peters transmitted the virus to his patients after he injected himself with the drug fentanyl.</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>Fifty-five women contracted hepatitis C after having abortions in Melbourne between 2008 and 2009. James Latham Peters, an anaesthetist with a drug dependence, has been prosecuted in Victoria for infecting these women while in his care. He is currently awaiting sentencing. </p>
<p><a href="https://theconversation.com/topics/hepatitis-c">Hepatitis C</a> is a common infection among injecting drug users. Peters transmitted the virus to them when he injected himself with fentanyl (a fast-acting morphine-like drug used as part of an anaesthetic) before he administered the remainder of the drug to his patients. </p>
<p>In a <a href="http://www.slatergordon.com.au/areas-of-practice/victoria/general-legal-services/class-actions/hep-c">class action</a>, lawyers for the victims are seeking damages from the doctors who engaged Peters as an anaesthetist and the Australian Health Practitioner Regulation Agency (AHPRA). AHPRA, which has taken over from the former Medical Practitioners Board of Victoria (MPBV), is responsible for the protection of the public through the registration of medical practitioners. </p>
<p>This tragic case demonstrates an unequivocal failure of the system. But what went so wrong?</p>
<p>Peters was <a href="http://www.theage.com.au/victoria/when-doctors-become-addicts-20120601-1zn8j.html">suspended</a> in 1996 for <a href="http://www.themonthly.com.au/duty-care-margaret-simons-2639">abusing opiates</a> and returned to work a year later. Found to be abusing fentanyl in 2003, he took a year off and returned to work under supervision. The flawed monitoring process failed to detect ongoing drug use and drug-seeking behaviour which put patients at risk. </p>
<p>Fentanyl, the drug preferred by Peters, is easily accessed by anaesthetists. It rapidly breaks down to metabolites which are not part of a routine toxicology screen and are only measured when specifically requested. It is unclear as to why fentanyl was not tested in the ongoing monitoring of Peters.</p>
<p>Hepatitis C is a disease that must be reported to the local health authorities to protect <a href="http://docs.health.vic.gov.au/docs/doc/EF0DAFC2914A3F5ECA2578BC0027E246/$FILE/Privacy%20information%20for%20medical%20practitioners%201111.pdf">public health</a>. This reporting enabled the source of the hepatitis C outbreak to be traced back to Peters. But it’s unclear whether this information was communicated to the Medical Board in 1997. Disease notifications are not linked to databases held by other organisations such as AHPRA. And there are over 10,000 hepatitis C <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1301.0%7E2012%7EMain%20Features%7ECommunicable%20diseases%7E232">notifications</a> annually in Australia and many other infectious disease notifications, so it’s feasible this information fell through the cracks.</p>
<p>This breakdown of process raised some important questions: could this communication have prevented the spread of hepatitis C in this case? And what are the implications for the privacy of individuals if information were to be shared? In 2011, <a href="http://www.medicalboard.gov.au/News/Past-Consultations/2011/Consultation-April-2011-1.aspx">AHPRA</a> sought public comment on the possibility of the Board taking a stronger role in monitoring hepatitis C, but the outcomes of the consultation were not made available to the public. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/20575/original/7k7y7yq5-1361765639.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Around one in ten doctors experience problems with addiction.</span>
<span class="attribution"><span class="source">Image from shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Managing drug-dependent doctors</h2>
<p>The proportion of doctors who develop a substance use disorder during their lives is <a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2704134/">similar</a> to the general population – around 10% to 12%. Doctors, like other members of society, are vulnerable human beings but they have access to restricted medications which are highly addictive.</p>
<p>When a doctor is suspected of drug dependence or any other form of impairment, the operating principles are: ensure public safety and treat the doctor. </p>
<p>There is both an ethical and legal <a href="https://www.mja.com.au/journal/2011/194/4/mandatory-reporting-doctors-health-and-ethical-obligations">requirement</a> for health professionals who believe a doctor is drug dependent and places the public at substantial harm to report this to AHPRA. Reporting triggers a comprehensive assessment, treatment and a risk management plan. Strategies to ensure public safety include removing the doctor from the workplace (voluntarily or involuntary), restricting their prescribing and access to drugs, and placing them in a non-clinical role. </p>
<p>Treatment programs exist within all Australian jurisdictions to help manage impaired doctors. Such programs may be provided by individuals such as psychiatrists, addiction specialists or general practitioners, or by independent organisations such as the <a href="http://www.vdhp.org.au/website/home.html">Victorian Doctors Health Program</a>. Regardless of who provides the treatment, AHPRA has a critical oversight role in managing drug-dependent doctors and protecting the public. </p>
<p>Strict monitoring programs involve a combination of regular reviews by treating doctors, a responsible person in the workplace who observes day-to-day behaviour, and drug testing. Monitoring usually intensifies with return to work since public safety is the primary consideration.</p>
<p>Substantial resources go into training doctors and rehabilitation means this investment is not wasted. Medical practitioners with drug dependence have better treatment outcomes than that of other opioid-dependent people, and the majority successfully <a href="http://www.ncbi.nlm.nih.gov/pubmed/21682615">return</a> to medical work. </p>
<p>As with all complex systems, errors occur. But key questions remain: How was a drug-dependent doctor – who relapsed several times and was on the radar for many years – allowed back to a job that gave him unsupervised access to his drug of choice? Could Peters’ recurrent relapses to fentanyl abuse and hepatitis C have been detected earlier? And could the tragic consequences have been avoided with better monitoring processes? </p>
<p>The answers may come out in the <a href="http://www.abc.net.au/pm/content/2012/s3504395.htm?site=melbourne">Supreme Court of Victoria</a> as victims seek damages for Peters’ crimes. </p><img src="https://counter.theconversation.com/content/12166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Moira Sim has the following roles: Medical Advisor, Health and Disability Services Complaints Office; Medical Practitioner, Impairment Review Committee, Nurses & Midwives Board, Australian Health Practitioner Regulation Agency: Panellist, Impairment Review Committee and Professional Standards Committee, Medical Board, Australian Health Practitioner Regulation Agency.</span></em></p><p class="fine-print"><em><span>Eric Khong is affiliated with the Impairment Review Committee of the Nurses and Midwives Board (Australian Health Practitioner Regulation Agency) and the Health and Disability Services Complaints Office.</span></em></p>Fifty-five women contracted hepatitis C after having abortions in Melbourne between 2008 and 2009. James Latham Peters, an anaesthetist with a drug dependence, has been prosecuted in Victoria for infecting…Moira Sim, Professor and Head of School, Medical Sciences, Edith Cowan UniversityEric Khong, Senior Lecturer, School of Medical Sciences, Edith Cowan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/121202013-02-12T19:18:38Z2013-02-12T19:18:38ZDon’t blame doctors for patients’ failure to lose weight<figure><img src="https://images.theconversation.com/files/20135/original/qr3rb4zk-1360557692.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doctors shouldn't be forced into policing the choices of their patients.</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>The New South Wales Supreme Court recently <a href="http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=162435">awarded</a> a morbidly obese man $364,372 in damages for developing terminal liver cancer as a consequence of his doctor’s failure to refer him for <a href="https://theconversation.com/bariatric-surgery-works-we-just-need-to-ensure-its-safe-6756">bariatric</a> (gastric banding) surgery. </p>
<p>The decision has reignited the war of words between courts and medical practitioners, including <a href="http://www.smh.com.au/national/health/obese-man-awarded-350000-from-gp-20130207-2e1gs.html">claims</a> of defensive medical practice and spiralling medical costs.</p>
<p>It also raises the question of whether doctors can expect their patients to take responsibility for their own health. Or does every doctor or health-care worker need to repeat general health warnings, even if the risks are obvious? </p>
<h2>Medical negligence</h2>
<p>In the early 2000s, medical lobbyists <a href="http://www.abc.net.au/7.30/content/2003/s962790.htm">successfully campaigned</a> for negligence law reform, claiming courts were “pro-plaintiff”, with “exorbitant” damages awards increasing insurance premiums and forcing doctors out of practice. The <a href="http://revofneg.treasury.gov.au/content/Report2/PDF/Law_Neg_Final.pdf">Ipp Review</a> into the “insurance crisis” led to widespread legislative reform.</p>
<p>Medical negligence requires that defendant doctors failed to respond to risks they should have foreseen, in the way a reasonable person in their position would. It also requires that, on the balance of probabilities, their conduct caused the harm suffered by the plaintiffs. Proving causation requires both that the defendant’s conduct was a “necessary condition” of the harm, and that it is appropriate for the defendant’s liability to include the harm.</p>
<h2>Almario v Varipatis</h2>
<p>In <a href="http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=162435">the recent Supreme Court case</a>, plaintiff Luis Almario had a long history of health complaints including abnormal liver function at the time he started consulting doctor Emmanuel Varipatis. Some of his problems were aggravated by his obesity.</p>
<p>Other doctors had counselled Almario about his weight and referred him to specialist weight management programs – with mixed success – prior to his first visit to Dr Varipatis. </p>
<p>Almario’s abnormal liver function increased his risk of developing <a href="http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Liver_problems_primary_biliary_cirrhosis">cirrhosis</a>, in turn increasing the risk of liver failure and liver cancer, all of which he subsequently developed.</p>
<p>Almario sued, claiming his liver cancer resulted from the doctor’s failure to address his weight problem. Although the evidence showed Varipatis discussed the plaintiff’s weight with him during their relationship, the court found the discussion had not directly associated failure to lose weight with progression of the liver disease to cancer. And advising Almario to lose weight, without providing further support, was insufficient.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/20134/original/dfj8z7mx-1360557444.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Patients should have the right to make their own lifestyle decisions.</span>
<span class="attribution"><span class="source">Image from shutterstock.com</span></span>
</figcaption>
</figure>
<p>The doctor’s conduct fell short of “a reasonable person’s” in three ways: failure to refer Almario for assessment for gastric banding surgery; failure to refer him to specialist weight loss support services; and failure to refer to a specialist hepatologist as the patient’s liver condition deteriorated but before he developed cancer.</p>
<p>Almario’s initial claim for damages - $569,332 - was reduced by 20% for his contributory negligence in failing to lose weight, but overall the claim succeeded.</p>
<p>Varipatis was only found liable for his negligent failure to refer Almario for bariatric surgery assessment, which was a “necessary condition” of Almario’s progression from liver disease to cancer, in spite of the possibility that Almario may not have been suitable for surgery, may not have complied with the post-operative requirements, or may not have been able to afford the procedure. </p>
<p>Expert witnesses were divided as to whether bariatric surgery, then a relatively new and untested procedure, was sufficiently recognised as a treatment option for the plaintiff’s type of liver disease that a “reasonable person” in Varipatis’s position would have considered it .</p>
<h2>What does it mean for other doctors?</h2>
<p>The decision imposes on doctors the burden of exploring every possible treatment option which might have benefits to their patient, regardless of its likelihood of success. It also requires that they do more than just counsel patients about lifestyle modifications – how much more, or what would be sufficient in the case of an obstinate patient, is not clear.</p>
<p>Obvious risk areas include counselling about smoking, alcohol use, and other drugs. Presumably it would also require doctors to follow up when patients are provided with referrals to specialists, other clinics, or for tests such as imaging or pathology, to ensure they keep their appointments. The resourcing burden of practising this type of defensive medicine is enormous, and it will substantially reduce the affordability of health care.</p>
<p>Patients have the right to make their own decisions, with those decisions being respected by health-care providers and the law. Likewise, patients cannot abdicate responsibility for the consequences of their decisions. Doctors should not be forced into policing the choices of their patients. To do so denies patient autonomy, and forces doctors into the role of nannies or health police.</p>
<p><em><strong>For a GP researchers perspective on this issue, read <a href="https://theconversation.com/are-gps-doing-enough-to-help-patients-lose-weight-12112">Are GPs doing enough to help patients lose weight?</a> by Nicholas Zwar and Mark Harris</strong></em></p><img src="https://counter.theconversation.com/content/12120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wendy Bonython does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The New South Wales Supreme Court recently awarded a morbidly obese man $364,372 in damages for developing terminal liver cancer as a consequence of his doctor’s failure to refer him for bariatric (gastric…Wendy Bonython, Assistant Professor, School of Law- Torts, Health and Biotechnology, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/71382012-10-05T01:26:48Z2012-10-05T01:26:48ZAustralia’s medical indemnity claims – why should we care?<figure><img src="https://images.theconversation.com/files/16131/original/zm6qdhk2-1349246715.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Adverse outcomes in health care have a deeply personal impact on patients and on medical practitioners.</span> <span class="attribution"><span class="source">Zoriah/Flickr</span></span></figcaption></figure><p>Evidence-based medicine is the conscientious, explicit and judicious use of the best current evidence in making decisions about patient care. The same approach should be taken when patients are harmed by adverse events in the course of medical treatment and advice.</p>
<p>Only recently has data on compensation claims for harm suffered by patients become publicly available in Australia. It is published by the <a href="http://www.aihw.gov.au/publication-detail/?id=10737422842">Australian Institute for Health and Welfare</a> (AIHW) – most recently for the 2010–2011 financial year.</p>
<p>The 2,800 new claims identified for that year by AIHW appear quite modest bearing in mind that there are about 88,000 medical practitioners across Australia, as the Australian Health Practitioner Regulation Agency (<a href="http://www.ahpra.gov.au/">AHPRA</a>) tells us. Curiously, until the recent advent of AHPRA and a national regulation scheme, even the number of medical practitioners in Australia was a little unclear.</p>
<p>More medical indemnity claims are made by women than men, and the difference appears to be as much as 15%.</p>
<p>But the number of claims is not growing, as least not recently. The claims for the preceding year numbered 2,900, including Western Australia which disappointingly appears to have fallen out of the public sector reporting in the most recent data. But recently-included data on claims over time does show an increase over earlier years.</p>
<p>More than a third of all claims resolve for modest amounts – less than $10,000. But at the other end of the spectrum, serious harm must have been suffered by the 6% of claimants (something in the order of 150 people) for whom the claim cost exceeded $500,000.</p>
<p>Not all claims require determination by a court. Far from it, in fact. The data shows that a mere 3% of claims require a court hearing, revealing a sensible approach to claims management and compensation payment. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/16128/original/g6v98ntf-1349245270.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Obstetric practice produce high-cost claims because of the need to provide care to an injured infant over her entire lifespan.</span>
<span class="attribution"><span class="source">Brad Brundage</span></span>
</figcaption>
</figure>
<p>Claims are split across general surgery, which covers 25%, emergency department 17% and obstetrics 13%. It would be wise to contrast these numbers to clinician and service numbers. Of course, raw numbers may do little to reflect severity of injury and total cost of claims. Obstetric practice, for example, can produce high-cost claims because of the need to provide care to an injured infant over his or her entire lifespan.</p>
<p>Good quality health care is a core expectation in Australian society. Major efforts to improve standards continue, such as the work of the <a href="http://www.safetyandquality.gov.au/">Australian Commission on Safety and Quality in Health Care</a>.</p>
<p>Adverse outcomes in health care have a deeply personal impact on patients and on medical practitioners. While private insurance schemes substantially provide for compensation in the private sector, the community as a whole partially funds the private sector claims and bears the cost of the public sector claims. With the <a href="http://www.treasurer.gov.au/DisplayDocs.aspx?doc=pressreleases/2011/148.htm&pageID=003&min=brs&Year=&DocType=">National Injury Insurance Scheme</a> on the horizon, the cost to the community may well increase.</p>
<p>Why then, should we care? Not only for economic reasons. Sound evidence, such as the increasingly valuable AIHW medical indemnity data, must surely assist in identifying problem areas and developing responses to benefit the medical profession and its patients.</p><img src="https://counter.theconversation.com/content/7138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill Madden does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Evidence-based medicine is the conscientious, explicit and judicious use of the best current evidence in making decisions about patient care. The same approach should be taken when patients are harmed…Bill Madden, Adjunct Fellow, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.