Long-term care scheme is needed to ensure success of medical indemnity reforms - AMA

Dr Glasson said all the hard work and sacrifice put in by the Federal and State and Territory Governments - and doctors and their patients - would not have maximum impact without the security of a long-term care scheme.

"We have come so far in fixing medical indemnity for good in this country it would be foolish not to go the extra few yards to finish the job," Dr Glasson said.

"The Howard Government, through the tireless efforts of Health Minister, Tony Abbott, delivered a commendable medical indemnity reform package before Christmas.

"The AMA is working with the Government on aspects of retirement cover and a few other peripheral matters before we can put the ribbon on the package.

"Most of the States and Territories have implemented far-reaching tort law reform to ease the pressure and take a lot of the cost and unnecessary hurt out of medical negligence litigation.

"Despite all the reform and goodwill, the adversarial court system is still undermining the security and affordability of the medical indemnity system in Australia.

"We still have two major problems.

"Doctors still do not have the confidence and security to stay in practice or to enter high risk specialties.  This is causing access problems for patients.  They cannot get to see doctors when they need them.

"And there is still no sign of decreases or even a levelling out in medical indemnity insurance premiums.  Government subsidies are helping, but the actual premiums have not come down.  This means doctors' costs are still high and patients are paying higher gaps for their care."

Dr Glasson said two recent court cases illustrate the problem and highlight the need for the long-term care scheme.

"These two court cases had two very different outcomes, but the effect has been the same," Dr Glasson said.

"Stressed families.  Stressed relationships.  Professional reputations in tatters.  No winners.  Not one."

In March, the ACT Supreme Court awarded $8.38 million to 24-year-old Lainie Radovanovic, who is profoundly disabled due to cerebral palsy.  Legal costs are ultimately expected to be around $5 million.

In handing down his judgement, the judge said that the obstetrician, the distinguished and respected Dr Bryan Cutter, had 'imperfect memory and inability to produce full records'.

This ignores the obvious fact that medical records are kept for the purposes of delivering medical care, not to document every detail that might be brought up in a future medicolegal case.

"Twenty-four years after a split second incident in a complex and risky procedure and a brilliant medical career is dismissed in a few words," Dr Glasson said.

"Lainie and her family should be compensated for their hurt and their loss and for the expensive care for Lainie over the last 24 years and for the rest of her life.

"But does it have to happen like this?  Lawyers at twenty paces a lifetime after a life-and-death decision that took a microsecond.

"There has to be a better way."

In April, Sydney's Dr Alan Kaye, another highly respected and skilled obstetrician, faced judgement over alleged negligence when Kristy Bruce was born with cerebral palsy 15 years ago.

Dr Glasson said the case against Dr Kaye was based on supposedly poor records kept by the doctor, but the judge found 'the record was one of integrity'.

The judge said:

"There has been criticism of the defendant's record keeping, in particular by Dr Caldwell, and there was some acknowledgement by himself.  It needs to be remembered however that the notes are kept for the purpose of enabling the doctor to manage the patient.  The notes are not created as a log of every incident and exchange between them.

They are not a detailed chronicle presenting a complete description of the progress of pregnancy.  There needs to be a sufficiency of notes but I accept that there would be no purpose in simply recording everything particularly things which are routine and satisfactorily progressing.  The result is that some things will be noted and others not.

I recognise that there is also a purpose in the notes in that, should a situation arise that Dr Kaye could not continue management (for example if he became ill), they could be made available to a succeeding obstetrician.  I expect that they would be useful to such a professional but I am unconvinced that they are always useful in the hands of others, such as lawyers, seeking to make hindsight deductions."

"To put further strain on Dr Kaye and his career, he faced trial by media over the two months of the trial.

"Television news portrayed him as 'negligent' before any judgement was brought down.

"Throughout it all, Dr Kaye stood by his medical decisions at the time of the birth and he was vindicated."

The judge said:

"No one could fail to be moved by Kristy's plight nor fail to acknowledge the dedication of her mother and family to her care.  But Kristy's plight was not a consequence of breach of duty of care by the defendant.  In short, he took reasonable care in the relevant management of Ms Chevelle's pregnancy in all the circumstances, and in treating her he exercised the care and skill to be expected of a competent obstetrician.  I conclude there must be judgement for the defendant."

"No winners again," Dr Glasson said.

"Although he won the case, Dr Kaye's practice is in tatters because of the negative publicity in the lead up to the judgement.

"Kristy still needs special care.  Expensive care.  Her family and friends must provide it."

Dr Glasson said these two tragic cases are a potent argument for a national long-term care scheme for the severely injured.

"The adversarial court system that deals with medical negligence claims threatens the success of years of medical indemnity and tort law reform," Dr Glasson said.

"A long-term care scheme would remove that threat.

"Such a scheme would be affordable and responsible.  It would take away the blame game.  It would restore justice.

"It would ensure that Lainie and Kristy would get the care they need when they need it - not fifteen or twenty years after the event.

"Dr Cutter and Dr Kaye would still have their reputations as great doctors intact.

"If we are to fix the system, we need a cooperative effort involving all Australian Governments, the medical and legal professions, the insurance industry, and the medical defence organisations.

"A long-term care scheme is commonsense.  It would put fairness back into the system.

"The AMA will do all in its power to get the long-term care scheme back on the political agenda.  The Australian community would expect nothing less," Dr Glasson said.

CONTACT:    John Flannery   (02) 6270 5477 / (0419) 494 761

                   Judith Tokley    (02) 6270 5471 / (0408) 824 306

**Dr Kaye is also available for interview