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Dr Kerryn Phelps, AMA President to the Law Institute of Victoria, President's Luncheon, Melbourne

Good afternoon, ladies and gentlemen. It is indeed a pleasure to be here among friends.

It wasn't hard to choose a topic to speak to today. Medical indemnity is as much about the legal profession as it is about the medical profession.

In the middle of this professional sandwich is the consumer - the patient.

Perhaps 'the consumed' is a better term when you think of the adversarial legal processes involved in medical negligence cases in Australia.

When the legal and medical professions collide in these situations, I tend to side with Mr Bumble in Oliver Twist and declare that "the law is a ass - a idiot".

Many of you will be aware of my recent comments at the National Press Club where I called for a move away from the current adversarial approach to medical negligence cases in Australia.

In fact, I said - and I believe - medical practice is becoming an uninsurable risk.

Reporting of my speech focussed on my questioning a patient's right to sue their doctor.

The intent of my remarks was let's move away from a system predicated on a patient's right to sue to a system predicated on a patient's right to proper care and rehabilitation in the case of medical mishap.

There is a difference - an important difference.

My comments fuelled community debate about how to solve the medical indemnity crisis and, more broadly, the public liability insurance crisis gripping the Australian community.

Calls to the AMA office in Canberra following my speech overwhelmingly supported my policy prescription - and most of those calls were from members of the public, not doctors or, incidentally, lawyers.

The same pattern of support was reflected in letters and e-mails received since.

Not surprisingly, the response so far from Parliament House has been fairly muted.

And, surprise surprise, the loudest howls of protest have come from the legal profession - with plaintiff lawyers yelling loudest and longest.

One critic has been a J.A. Tooma, President of the Queensland Law Society, who has been on a letter writing campaign of sorts.

Mr Tooma cries foul and uses the following arguments:

"The call by AMA President, Dr Kerryn Phelps, for the axing of patients' basic rights to sue doctors for medical negligence is an appalling admission of doctors' belief in the god-like position they think they hold in society."

And

"Society is based on a principle of people being accountable for their actions. The AMA appears to see it differently."

Point one - doctors do not believe we have a god-like position in society.

Our point is that no judge or no lawyer can fully understand the split-second life-and-death decision making clinical environment in which doctors operate.

Doctors deal with flesh and blood - human beings - somebody's mother or father, son or daughter, husband or wife, or loved one - not a computer screen or a set of accounts or an automatic transmission or a piece of four-by-two.

Doctors are not god-like, Mr Tooma, but the stakes are pretty high when you're working with human lives and quality of life every day of every working week.

Point two - doctors are accountable for their actions. We live with risk every day. What do you think goes through the mind of a doctor when something goes wrong. Doctors have to live with their mistakes just as they live with their triumphs.

There is also a rigorous system of health care complaints and professional review including the Medical Boards in each State and Territory where accountability is tested.

Additionally, I made the point that any shift away from the adversarial legal system would require an efficient parallel reporting, complaints and disciplinary process that was fair to both patient and doctor.

Sadly, the adversarial legal system disregards the good that doctors do, and it does not provide justice for patients or doctors.

Mr Tooma's narrow views have done nothing to disprove the notion that 'the law is a ass - a idiot'.

Let me now revisit my Press Club Speech to help explain a way to restore fairness and equity to the system.

Without the preamble, this is the summary of the AMA position - as it currently stands and as I stated at the Press Club - in regard to solving the medical indemnity crisis.

The AMA sees the urgent response based around:

A national reform of the law of negligence, with as a minimum the return of the Bolam principle - that is, a patient should expect a standard of care in keeping with accepted professional practice of the time, and that it is not open to a court to find that a standard medical practice is negligent

Consistent and coordinated tort law reform in all States and Territories

A national standard Statute of Limitations of three years for adults and six years for minors

Assessment of liability by properly accredited experts

Removing Medicare payments and hospital costs from any awards

And a proper community-funded national care and rehabilitation scheme as a minimum for the severely disabled at a set level of impairment

Effective management of the so-called "tail". Until now the tail has been looking for a donkey to pin itself onto

Unfortunately the Federal government has picked the medical profession as that donkey with its suggestion of a levy. This puts the tail before the donkey

There are many reasons that the "tail"…that is the estimate of the cost of injuries that have never been reported…has in essence become the big problem. Without uniform and strictly enforceable statute of limitations, severely injured patients have an indefinite time, at least 25 years in some states, to bring a legal action against a doctor

No actuary could ever predict what a cerebral palsy case might be awarded by a court in a quarter of a century, yet the medical profession is expected to both estimate and fund that amount today.

While the Government is prepared to look at much of this agenda, their priorities at the moment seem to be a levy on doctors and a subsidy for high-risk specialties. But no detail…yet!

The AMA believes it is imperative that any discussion of a levy be put off until we have done all we can on tort law reform in every State and Territory and introduced the national care and rehabilitation scheme.

For doctors to agree to any levy at this time would be throwing money into a black hole.

Downward pressure must be placed on premiums, and this is just not happening yet.

While the tort law reforms in NSW are yet to slow premiums, I shudder to think how high they might be without these reforms.

It is vital that all the other States catch up with NSW. Nationally harmonised tort law reform must proceed, particularly statute of limitations.

As it stands, from the point of State reforms, NSW is leaps and bounds ahead of the pack.

Queensland has now taken some AMA advice and is getting there.

South Australia has gone for the soft option.

But Victoria has not even stepped up to the starting blocks. Perhaps the starter's gun is held by the plaintiff lawyers in Victoria.

So where are we if State tort law reform is not achieved and legislated by, say, the end of October?

Where are we if the Government hasn't legislated for a suitable community-funded care and rehabilitation scheme for the severely disabled?

Where are we if medical indemnity premiums continue to spiral out of control?

I'd say we'll all be in big trouble. There'll be chaos.

As I keep saying: It's time to fast track or change tack.

Australia must have a back-up plan, a Plan B.

We can't wait until December 31 to make decisions.

The Government must be prepared to extend its guarantee to give the States and Territories enough time to get their reforms through and for premiums to start coming down.

This extension must not be conditional on the imposition of a levy on doctors.

And, given the overseas experience, a national debate must begin on the possibility of a national medical accident scheme.

Different versions of a scheme have been raised by both sides of politics. In an editorial earlier this month, the Australian Financial Review also backed such a scheme.

We need to go forward. We need an alternative to the current adversarial legal system for medical negligence.

As a community, we do need to put an end to the automatic notion that patients have the basic right to sue their doctors. That does not appear in any human rights charter.

Instead, we should promote the concept that patients have a right to safety and good care, and support if they are harmed.

Let's change the focus.

The litigation system stands in the way of many people accessing that right to care and support which should depend on patient need, not proving some form of conduct by the doctor or the system.

And it stands in the way of improving safety in the health system.

To cover all bases, the AMA is prepared to explore a National Medical Accident Scheme.

Such a scheme would support the needs of people who suffer impairment as a result of medical accident.

The scheme would:

Be Government funded and provide provide services for long term care of the severely impaired

Be governed by an impairment threshold. Anyone who suffers significant impairment from a medical accident who needs support should be entitled to the benefits of the scheme

Allow small claims to be handled through a non-adversarial complaints mechanism with genuine cases of negligence, properly defined, referred to appropriate professional review

Provide effective risk management aimed at improving safety in the health system

Support Medical Defence Organisations to remain as providers of membership services like complaint review, representation at inquests and tribunals, disciplinary matters - the so called 'road service' matters relating to legal compliance

Support Open Disclosure in a non-adversarial environment. Open disclosure is only possible in the absence of litigation.

The medical indemnity crisis makes it necessary for us to at the very least closely examine such a cheme for Australia.

So, that's where the AMA stands on the matter and we are due to meet with the Government again soon to discuss developments.

At the very least we have identified a very credible Plan B should current efforts fail to produce results.

But what of the legal profession? What direction should it be taking?

Being here today - among friends - I thought I might take a leaf out of Mr Tooma's book and flag a few ideas - but I'll do it in person, not through the letters pages. And I'll endeavour to use logic, not rhetoric.

The adversarial legal system is in need of radical overhaul, at least so far as medical disputes are concerned.

The legal profession's motives for resisting change are increasingly under public scrutiny.

It is time for the profession to involve itself in the overhaul, and not merely accept small tort law reform and procedural changes that do no more than tinker with the existing system.

I want to suggest to you that the adversarial fault system of law is wholly unsuited to deal with medical disputes and medical negligence, both with regard to causation and breaches of the duty of care.

It is also harmful to the recent moves to encourage open disclosure and free and frank discussion with patients when things go wrong.

The proposed National Standard on Open Disclosure will not work in the current environment.

The fault system:

Encourages doctors to 'clam up' when things go wrong. Open disclosure, expressions of sorrow to patients, discussions of what might have gone wrong and what can be done immediately to rectify problems, are impeded by a doctor's fear of being sued.

Encourages doctors who might be found negligent to settle out of court, making it impossible to find out what went wrong.

Encourages doctors to practise defensive medicine, which is costly to the public health system and the community as a whole.

The adversarial system fails to distinguish between 'avoidable medical accidents' that arise out of negligence, and those where the care was entirely appropriate, although the taking of another course may have led to a better outcome.

It fails to eliminate the inevitable 'hindsight bias' of medico-legal expert witnesses.

Their very engagement by a lawyer indicates that something in the diagnosis, treatment or care went wrong, or their opinion would not have been sought. More on this a little later.

Causation issues are complex.

In relation to cerebral palsy cases, where there is clear evidence of trauma at birth, say from forceps use, a court is likely to find that it is more probable than not that the trauma was causative of the cerebral palsy.

Yet, in the case of a congenital injury, or brain damage having occurred in utero, the fetus' very condition may account for the delivery difficulties.

The later deprivation of oxygen might not have contributed, or added little to the condition of the baby.

Apportioning attribution of damage in such cases is impossible. The doctor inevitably cops the decision and the whole of the damages.

This is a system which focuses on 'proof' not 'truth'.

What, anyway, is the object of the current tort, damages award system?

To provide a fair and affordable system of compensation?

To provide adequate compensation for patients injured from a doctor's negligence?

To punish a doctor?

Or is it to enhance quality and safety in health care?

In reality, it fails to achieve any of these things.

The system is neither fair nor affordable to most people who suffer adverse outcomes from medical accidents.

The compensation awarded from a 'win' or 'lose' system is more like a lottery.

The amount awarded is sometimes inadequate and other times provides a windfall to the patient, or relatives.

Civil litigation does not provide a forum for appropriate professional review of doctors, and as mentioned above it hinders risk management and improvements in the quality and safety in health care.

It is time for lawyers to examine their resistance to change, the system they are loath to change, and their own motivations when professing to be acting in the interests of their clients.

Your clients are our patients.

Doctors do not want to see injured patients with inadequate compensation or support for their ongoing needs.

A system is required that is efficient, cost-effective and provides a fair means of compensating the victims of medical accidents.

It may not be traumatic for you to go into a courtroom to perform. But it is incredibly stressful for doctor and for patients…plaintiffs and defendants, and the protracted nature of legal battles prevents patients from moving on with their lives. It encourages persisting disability to maximise payouts.

It is efficient if the victim does not have to prove in a court of law that the damage has resulted from someone else's negligence in order to receive support and rehabilitation in the crucial weeks and months following an injury.

It is cost-effective if the person need only persuade a board (or panel of accredited experts) that the damage has resulted from and has occurred in circumstances that qualify within the conditions laid down by the scheme.

It is fair if the criterion was that an 'avoidable' medical accident occurred causing a loss or disability.

Not all avoidable medical accidents arise out of negligence or occur where negligence was causative of the damage.

It is claims arising out of these accidents which are most likely to result in injustice to both plaintiff and defendants under the existing tort law.

In New Zealand, 'Medical Mishap' - under its accident compensation scheme - has been a form of distributive justice, whereby society has recognised that even in the best professional hands, appropriate care can sometimes lead to adverse outcomes - and that when this is rare and severe, a caring society should compensate the harm that results.

Only in a non-adversarial and no-fault environment can open disclosure and effective risk management and quality control occur.

It was reported in The Financial Review this week that the Victorian Law Reform Commissioner, Professor Marcia Neave, said Government reforms of medical indemnity would not go as far as doctors are 'demanding'.

Professor Neave, of course, is working on both Federal and State Government indemnity reform processes.

She says, however, that her terms of reference don't propose some sort of no-fault scheme, and that instead they propose some sort of integrated scheme to deal with negligence.

We have been working closely with the Australian Health Ministers Advisory Council's (AHMAC) medical indemnity consultative group, and we are also represented on its legal process reform group sub-committee headed, coincidentally, by Professor Neave.

There is support across the board for a national fund to support the long-term care and rehabilitation costs of the severely disabled, allowing the removal of these costs from the tort system.

The entry criteria and the funding of this scheme are very much open issues at the moment on the Federal Government agenda.

Any AHMAC-imposed restriction on the terms of reference of Professor Neave's Committee is governed by the misconceived assumption that the Federal Government and State Treasurers are not willing to fund a national scheme.

The longer it takes for the States to coordinate effective national tort law reform the more likely is it that the AMA's 'change tack' solution - our Plan B - of the establishment of a national medical accident scheme will have to be developed, sooner rather than later.

The Health Ministers have been slow to realise the health services crisis unfolding before them.

Most have failed to heed the AMA's warnings from at least two years ago, carrying on instead with a "she'll be right, Jack" attitude.

Doctors and patients would prefer to see a national scheme that provides the support, care and rehabilitation they need in the event of a medical accident.

It is a far better option than the inside of lawyers' officers and courts for years down the track.

The AMA is talking to the Federal and State Governments about the reality of the situation that requires such a scheme to be developed.

As mentioned briefly already, another impediment to progress is the current reliance by both sides on so-called 'expert witnesses'.

These are medical experts paid to give evidence supporting the case of either the plaintiff or the defence on any given day. Truth at a price, if you like. But where's the proof?

The adversarial litigation system has encouraged the emergence of plaintiff and defendant 'guns for hire' scenario, unhelpful to the court, and destructive of any real inquiry as to what went wrong - the answer to which the patient wants as soon as possible - and which the system needs in order to prevent similar mistakes.

The AMA was appalled recently to hear of the emergence of expert witness 'broker' firms.

Lawyers, on the basis of their client's limited knowledge of what caused an adverse medical event, are approaching such broker firms, who then distribute the account to a large panel of doctors, asking them all if they would like to be engaged as an expert for the plaintiff?

What madness is this?

I invite your Institute and the legal profession to work with the AMA and the medical profession - not against us.

I encourage the legal profession to explore the ethics and social justice issues surrounding the adversarial approach to medical misadventure.

In unison, we can develop a medical accident scheme that is truly fair and affordable for patients who suffer more than trivial injury from medical accidents - a system that moves away from the present adversarial tort system.

If we get it right, patients will thank us. Communities will thank us.

Who knows, Governments might even thank us.

It's worth a try.

Thank you.

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