Transcript of Interview - Dr Andrew Pesce, Chairman, AMA's Medical Professional Indemnity Task Force, with Tricia Duffield, Radio 2SM, Thursday 17 July 2003

TRICIA DUFFIELD: Joining me on the program now is Andrew Pesce, who is Chairman of the AMA's Medical Professional Indemnity Task Force, who might be able to tell us a little bit more about the implications of this decision on other doctors, on the industry as a whole. Good morning, thank you very much for your time this morning, Andrew.

ANDREW PESCE: Thank you, Tricia, for having me on your show.

TRICIA DUFFIELD: Thank you. You would have heard a lot of what Dr Cattanach was saying there. And yes, this will, I'm assuming this will have an enormous impact on insurance premiums for doctors and on whether doctors decide whether they will continue practising, I would think.

ANDREW PESCE: Well, I think that it does have an enormous implication for the indemnity industry for doctors and for society as a whole. I think that you've picked up that Dr Cattanach is quite even handed about this and there's no desire to avoid responsibility for times when doctors' mistakes cause terrible suffering and potentially ruin someone's life. But it's obvious now that incrementally that the legal system is used to just chip away and slightly ever increase doctors' liabilities to pay for things that other people just have to bear with- -

TRICIA DUFFIELD: In good grace.

ANDREW PESCE: - -good grace.

TRICIA DUFFIELD: Andrew, in this case I could imagine that they could have ruled that perhaps he was liable for the costs of the birth of the child, for example, or medical costs during pregnancy perhaps. But to be liable for the rest of that child's young life - I mean, until that child becomes an independent adult I guess. I cannot understand that decision because- -

ANDREW PESCE: You're absolutely right. For years and years and years doctors who have performed sterilisations which have failed have been sued for loss of, economic loss, if a woman had to sort of avoid work for the time of her pregnancy and delivery and the medical costs of delivering the baby.

And that's been established and upheld in law over many, many years, and the significance of this decision is that there is now a quantum of damages above that that had been accepted by everyone in the medical profession for negligence of sterilisations. And now there's been added that the costs of upbringing of a healthy child, which now is added to what has previously been accepted as damages.

TRICIA DUFFIELD: What will that mean? If we go, "OK, this decision has been made. It's now set in law, it sets a precedent" - what will that mean in dollar terms, if this is going to get down to dollars and cents as it has in this case, what will it mean?

ANDREW PESCE: I can't answer that yet, but I guess the way I'd answer it is this, that this doesn't have just implications for tubal ligation procedures, any doctor who now has anything to do with anyone's family planning is potentially liable if something goes wrong in the family planning.

So, even a doctor prescribing the pill, for example, and for some reason the patient gets pregnant and a court of law can find that the doctor in some way contributed to the patient's unplanned pregnancy, now all of a sudden there's a whole quantum of damages which never would have applied before- -

TRICIA DUFFIELD: Yes.

ANDREW PESCE: - -and there is a precedence for this. I guess you're probably aware that there has been some pregnancies occurring after the Implanon device, which is an acceptable contraceptive. And some medical defence organisations are now charging doctors who want to put in these devices, who are GPs, an extra $5000 or $6000 in indemnity premiums if they decide to do this if (indistinct) they didn't. Now- -

TRICIA DUFFIELD: Because of the risk that there might be a pregnancy and then that person has a case?

ANDREW PESCE: Well, the insurance organisations have to factor in the potential costs of all these law suits over the future, and they have to start reserving money for it. Now, you can very easily see that we're going to get the situation where a doctor might put in half a dozen of these devices a year and only make about $200 out of it- -

TRICIA DUFFIELD: Yes.

ANDREW PESCE: - -has to pay $5000 extra in insurance. Well, blind Freddy can see that that doctor is probably going to make a decision that it's not worth putting in these things, or maybe charge a thousand dollars a pop, out of the patient's pocket. Now, I guess we have to balance up all the pros and cons.

But there is no doubt that these sorts of decisions really emphasise how the legal system has now moved away from something which the reasonable person I think in our community would have decided it was for - and that is to ensure that anyone who is affected by some disastrous medical mistake isn't forced to live a life of penury because they're paraplegic or something.

TRICIA DUFFIELD: That's right.

ANDREW PESCE: And now we're suddenly adding on all these little bits and pieces and in fact instead of being a safety net for critically damaged patients, it's now becoming a social security system, adding to upkeep of healthy people.

TRICIA DUFFIELD: Yes, I don't know if you can comment on this, doctor, but I will ask it anyway. I look at the photograph of this woman and this child and this woman looks extremely happy. Who wouldn't be after getting $105,000 handout for someone else to raise your child? This child is beautiful, gorgeous, they look like a happy couple - the mother and child.

I find it really difficult in my heart to think that this woman had the gall to go to a court and say, "This child is costing me this much money and this child is not my financial responsibility" - because that's what she's saying.

ANDREW PESCE: I don't know any of the individual situation, but I would have thought that she probably went to a lawyer expecting to be compensated for her pain and suffering and the need to go through childbirth- -

TRICIA DUFFIELD: And the lawyer's gone, "Hey, you listen- -

ANDREW PESCE: "Hang on a sec, I reckon we can do a little bit more here." It's value adding to the lawyer's work obviously. Unfortunately all of the incentives in the system now seem to be going the wrong way, and I really think that there's going to be unfortunate consequences of this, which I'm sure the Justices don't foresee and didn't- -

TRICIA DUFFIELD: No, although I would say I'm surprised that they haven't seen what implication this will have.

ANDREW PESCE: I think the fact that there was a 4/3 split decision - I notice in your introduction, you said there was one dissenting Judge. In fact, it was a 4/3 split decision- -

TRICIA DUFFIELD: Right, so he was the one dissenting Judge that spoke out so eloquently?

ANDREW PESCE: Well, it was probably the headline-grabbing quote. But three out of the seven Judges - if one had gone the other way, we wouldn't be having this conversation. So that in itself demonstrates that even in terms of legal principles, this is a very contentious issue.

TRICIA DUFFIELD: Yes, that's right, it was close.

ANDREW PESCE: And certainly in terms of its implications to society, I think it's just another demonstration that I think maybe it's time that society has to actually rethink what is it that it actually wants out of a medical compensation system. Does it want to have some ideal Nirvana where everyone who has a little bit of a problem gets a lottery ticket to see whether they can get some money, or is it really just there to really make sure that none of our citizens suffer- -

TRICIA DUFFIELD: That's right.

ANDREW PESCE: - -disasters without support?

TRICIA DUFFIELD: That's right. That's what, how you've described it is right. I think what we need, doctor, is we need more doctors and less lawyers in this world and more people who are reasonable and just say, "That's life, that's how it happens" - because we can do all sorts of things to prevent pregnancy and if the pregnancy occurs - in this case, a pregnancy occurred.

There you go, that's how the human race survived anyway. But if we have a proliferation of very good lawyers, and as a result have fewer and fewer doctors doing their good work, then we really are in trouble. And I think that this just morally, it just sends a horrible message. So I thank you very much for your time on the program this morning, and I hope to speak to you again, doctor.

ANDREW PESCE: It's a pleasure, Tricia.

TRICIA DUFFIELD: Thanks very much, bye bye. Dr Andrew Pesce, who is Chairman of the AMA's Medical Professional Indemnity Task Force.

I can't understand this decision. OK, if you were in this circumstance, what would you do? Would you sue the doctor and say, "Hey, I didn't want this kid. You pay for it" even if you loved the child and whatever? Who owns the child in the end? And if this doctor's paying for the child's upkeep, why can't he say, "Well, I don't want the child brought up like that. I want this child brought up as a Catholic, not an Anglican. I want this child to go to this school, not that school. I want my child to eat this food, not that food. Watch this TV program, not that TV program."

If I was that doctor, I'd stick my nose in at every possible thing, and I'd make that child my own. I'm raising him, I'm paying for him - so he's my kid. That's the way we look at it now, isn't it, that children are just cattle worth $105,000." So he paid the $105,000, it's his kid.

Ends