Dr Kerryn Phelps, AMA President, with Steve Leibmann, Channel Nine 'Today'

Dr Phelps is in Canberra and joins us from our studios there, now. Good morning to you.

PHELPS: Good morning, Steve.

LEIBMANN: Why should patients surrender their basic right to sue their doctors?

PHELPS: What they would be doing would be balancing that right with the right to care and rehabilitation and the right to improvements in safety. Because, at the moment the way the legal system is working, not only is it cumbersome and expensive and a lottery for those who choose to enter into its processes, but it also stands in the way of open disclosure of doctors and hospitals being able to apologise when things go wrong and being able to monitor and collect data about medical errors.

LEIBMANN: So are you saying that if they don't surrender this right they can expect inadequate or below standard treatment and care?

PHELPS: Well, that's what's happening now. We're finding that people who have suffered severe injury and do not go through this expensive adversarial legal system are not getting the care and rehabilitation that they need in a timely way.

And even people who do go through this system will find that it might be several years. In one recent case, with the Calandre Simpson case, it was 23 years before there was actually a financial settlement involved, which was in the order of $13 million.

And, frankly, I mean the legal costs of running this system are so great - they're in the order of 45 to 50% - it's estimated that, I think, we really have to ask questions about who is really benefiting out of the way things are done at the moment.

LEIBMANN: So you're suggesting, correct me if I'm wrong, the taxpayers should pick up the tab for doctors' mistakes. Is that fair?

PHELPS: Well, it's not just about doctor's mistakes. I think we have to realise that with medical mishap, or when things go wrong with medical treatment, it's not just about doctors. Yes, indeed in any occupation, but certainly in a high risk occupation like medicine, things can and do go wrong. But it's also about other health care professionals, it's about the system, it's about the way the computer system works or doesn't work, it's about the way the hospital is organised, the way its resourced are allocated. So there are all sorts of reasons why something might go wrong in medical treatment.

But it's because doctors and hospitals have the insurance, that that's where people are targeted.

LEIBMANN: As a spin off to this proposal of yours, you're suggesting that negligence cases be dealt with through a professional review. Now, you and I know that that's not always going to work. You and I know that there are some doctors that simply won't, to use the vernacular, 'rat on their colleagues'?

PHELPS: Well, I think that if we have a system of litigation and an environment of shame and blame, as we have now, then there is a great disincentive to report any adverse events.

If we have a culture where we want to learn from our mistakes, where we actually treasure errors as building on our safety mechanisms and saying, 'Well, we know that went wrong, let's see how we can stop it ever happening again', then I think that we're in a better position to be able to improve the safety mechanisms within hospitals.

If you then identify people who are consistently creating mishap or involved in mishap, then you're in a position to be able to re-educate or to say this person ought not to be working in this field.

LEIBMANN: But are you confident, I mean, I can cite you, without going into specifics, a case that occurred on the New South Wales South Coast a couple of years ago where an orthopaedic surgeon performed an operation. The patient subsequently was not happy with the post-operative results, went to another orthopaedic surgeon who was mortified at what the original surgeon had done. But wouldn't report that surgeon who, last I heard, was still practising. Now…

PHELPS: Well, this is the whole problem with the litigation system as it is at the moment. There is an absolute terror of getting involved in any kind of legal issue.

Now, the bottom line is, was that patient getting the care that they needed? And, secondly, you know, what is the general quality of the care being provided by the first doctor?

Now the current litigation system means that we never find out, because even if that first doctor had been sued under the current system there would have been, no doubt, a settlement out of court which would have involved secrecy as a condition of the settlement. So nobody ever gets to find out if there's a systematic failure if there is some problem that needs to be addressed.

And the way we're going at the moment, we're trying very hard to make a bad system work with all the tort law reforms which are essential, and we must press forward with those tort law reforms in every State.

We have to introduce Statute of Limitations. We have to look at a long term care and rehabilitation scheme for the severely disabled. But if all of those things don't bring the situation into line, don't improve the problem that we have not only with premiums but with the safety mechanisms that we have in our health system, then we have to look forward to some other kind of solution.

LEIBMANN: Okay.

PHELPS: And I have to say that New Zealand has that similar system, not the same one that we're looking at. UK is looking at it and the USA is looking at it now as well. So it really is a problem that is in most of the developed countries now.

LEIBMANN: You and I will have to continue this over a cup of coffee. Good talking with you.

PHELPS: Thank you, Steve.

LEIBMANN: Thank you, Kerryn.

Ends