Australian medical negligence litigation – A state of play Q&A

Disclaimer 

The materials provided are for educational purposes only. Whilst all reasonable care has been taken in preparing these materials, including the accuracy of the information supplied, MIPS does not accept any liability whatsoever arising out of the use or reliance of the information provided.  

Contact MIPS 24/7 Clinico-Legal Support 1800 061 113 for specific advice. 

When should you inform your medical indemnity insurer about a potential medical negligence claim?

The MIPS Indemnity Insurance Policy states:

When You have to notify Us 

  1. You must notify Us at the time You first become aware of: 
  2. any Claim made against You
  3. any Investigation or proceeding against You
  4. any Incident that may give rise to a Claim against You
  5. any condition or restrictions imposed on You or Your practice by registration bodies, Your employer, educational bodies, a healthcare facility or supervisor; 
  6. any change in Your practice or provision of Healthcare (that includes amongst others the nature of Healthcare You provide or the location in which You provide Healthcare); 
  7. any Claim made against a practice entity in which You have a direct financial interest; 
  8. when You cease to be a Practitioner or cease to be a healthcare student; or 
  9. if You become deregistered or lose Your right to practice or to provide particular healthcare services. 

This enables a contemporaneous investigation, statement of circumstances, obtaining a copy of the records and enabling a financial estimate of any risk. Failure to notify on time may prejudice your rights to indemnity and assistance.  

I've heard that medical practitioners shouldn't be afraid of saying 'sorry' when things go wrong at the practitioner's fault and that it can even minimise the harm done when the patient or the family receives bad news. Ignoring the moral virtue of taking ownership and apologising for one's wrongdoing or mistakes, is there any circumstance where apologising be taken admission of liability, and how must one tread this ground?

MIPS supports open Disclosure as stated in AHPRAs code of conduct. It is a government initiative and practised widely in public hospitals. An open and timely discussion with the patient when things go wrong, including an agreed management plan, can go a long way to mitigating outcomes. An apology such as an expression of regret /sympathy is preferred rather than an admission of liability. Always report these incidents and discuss with MIPS your plan for open disclosure and saying sorry.  

What comeback do surgeons have when our medico legal "expert" colleagues write reports that are so blatantly inaccurate and give opinions that would fail a fellowship examination

This can be a problem, but it is ultimately up to the court to accept an individual as an expert and assess the strength or weakness of their evidence. Generally, only peer experts are accepted. For example, a city ED consultant should not comment on the actions of a remote non procedural GP. There have been limited cases of such concerns being drawn to the attention of relevant Colleges and Law Institutes. Those so called “experts” usually become well known in the medical indemnity defence industry.  

Please discuss, legal/litigation influence of AHPRA Code of Conduct 'Good Medical Practice and other AHPRA accredited Medical College guidances on an expected standard of conduct and clinical practice eg RACGP (eg in respect of opioid and benzodiazepine prescribing) or others eg Faculty of Pain Medicine ANZCA (eg on cannabinoid prescribing).

You should take all reasonable steps to adhere to AHPRA codes and Colleges guidelines, but note that any guidelines are just that. Depending on the circumstances of the case and how the plaintiff’s team run their case they may or may not be significant. Equally important are local hospital/employer protocols that doctors should follow as they will be investigated. Ultimately it is the relevant legal principles such as liability, causation, foreseeability etc, which are the main factors assessed and judged in litigation. Certainly concerning AHPRA investigations, the Medical Board Code of Conduct is likely to be applied in assessing the adequacy of your conduct or behaviour. 

As a junior doctor who is many years away from private practice, how much should I be worried about litigation, and what can I do now to prepare myself and develop good habits?

Not that worried as it is rare considering the number of practitioners. As a junior doctor, you are employer indemnified. That is, your employing hospital is vicariously liable for any confirmed negligence on your part, not you personally. Each State /Territory has insurance arrangements in place for its public health institutions. You should continue to maintain your MIPS membership/insurance as we will ensure that your hospital does indemnify you, provide cover for coronial inquests, assist with AHPRA/Drugs & Poisons etc., notifications and investigations as well as provide 24/7 clinico legal advice and risk education. 

Is there a specific source we can refer to gain knowledge of the legal side of clinical practice in Australia?

The University of Melbourne provides resources as well as some law firms such as Barry Nilson

Your local Law Institutes and Medical /Dental Colleges occasionally run such courses.  

Why are our time and energy not compensated as a fee that MIPS can recoup from the opposition legal team and claimant when costs are awarded against them?

This can be frustrating. There is currently no legal ready to recover this. Even though the court can award costs against plaintiffs, it is often difficult to actually recoup them. They also are not reflective of the entire expense incurred. Any funds that are recovered are paid back into the membership asset pool.  

If a patient has signed Advance Care Directive (ACD) and wants no invasive treatment, but the person listed as the substitute decision-maker wants the patient to receive invasive treatment, what is the right approach? To treat to not to treat?

If the ACD is current and valid and the substitute decision-maker does not need to be engaged, the ACD would apply. Suggest you do obtain your hospital, employer or MIPS advice.  

How does NDIS impact catastrophic claims payouts? 

Ndis – What you need to know about compensation  

Could you please share some information on cases where damages awarded are greater than MDO cover? How common is this, and how does it usually end?

Policies in Australia typically provide $20 million covers, as indeed does MIPS. However, different policies apply different sub-limits to non-civil claims – meaning that specific cover will vary between policies. There has not been a MIPS case where the damages awarded plus legal costs have come anywhere near $20M. One of the most expensive medical indemnity cases in Australia was the Simson V Dr Diamond case in NSW, originally $14.2M reduced by $3.2m on appeal in the early 2000s, which partly resulted in the medical indemnity insurance crisis, a range of tort reform and changes to medical indemnity insurance.  

Could surgical assistants be involved in liability?

They are likely to be named in proceedings as they were involved in the surgery. The exact circumstances of involvement, level of supervision, etc., would need to investigated to determine if and what contribution might apply to the surgical assistant. Please ensure your current member classification will indemnify you for such practice.  

If a doctor is a full-time permanent employee of the public hospital in QLD and treats a private patient in a public hospital, in case of any issue, is the doctor also liable, or just the hospital is liable?

This will depend on the employment agreement in place between the hospital and the practitioner, which should clearly spell out indemnity and other rights and obligations in the event of a private patient being treated.    

What is the current maximum threshold for all "damages" in eg Victoria? 

Damages for non economic loss (general damages/pain & suffering /compensation) are only recoverable where a plaintiff has sustained a significant injury” (not applicable to sexual offences). In injury other than psychiatric injury, the impairment must be more than 5%, and for psychiatric injury, 10%. Experts must assess impairment as permanent. The cap is indexed annually and is currently in the order of $620,000. The big ticket items are economic loss, loss of earning capacity, attendant care (plus interest and super). In catastrophic cases, these can be very substantial, and in theory, there is no cap for them. Still, the assessments must be substantiated by detailed medical and other expert evidence and agreed by the parties or determined by the court.   

Is it fair to state that most claims are successful when both court rulings and out of court settlements are taken into account?

That is a fair comment. However, for the most part, plaintiff solicitor firms are diligent in what cases they will take on. Those firms that provide a no win no fee model carefully triage out those cases that “have no legs”. Many claims are settled at conferences, at mediation and the door of the court. Many are settled with effectively no settlement on the basis that both side “bear costs and walk away”. It is rare for cases to go to trial and judgment.  



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