Transcript of Interview - Dr Mukesh Haikerwal, AMA Vice President, with Tim Cox, ABC Radio, Thursday 17 July 2003

TIM COX: Let's return to the topic of medical indemnity - which will, one way or another, affect each and everyone of us somewhere down the track - and that High Court decision that the surgeon who bungled, to paraphrase, a sterilisation is liable for the cost of raising to the age of 18 a boy, a human life that occurred after the procedure.

Doctor Mukesh Haikerwal is the Vice-President of the AMA. Good morning to you, doctor.

MUKESH HAIKERWAL: Good morning, Tim.

TIM COX: This decision represents a major change, I understand, in the way the law is interpreted, what's your take on the position of specialists now?

MUKESH HAIKERWAL: This decision last night certainly changes the way in which the law has been interpreted thus far. It's always been that if negligence has been proven obviously there needs to be proper compensation paid, but that didn't used to include the cost of raising a child. The law used to talk about the child as being a blessing and something that the parents will benefit from as the child grows through and that wasn't expected to be one of the heads of damage.

Now what this obviously means is that a lot of cases can now be brought forward in light of this decision, and it means that the whole environment, which we thought was settling down and we were getting some progress and some end and some sort of finer nature of exposure, is suddenly been blown out of the water again.

TIM COX: Does it open the floodgates then to a much greater number of claims?

MUKESH HAIKERWAL: It increases the number of people that can take advantage of this decision. I'm pleased that there's not a huge number of cases that get to court because despite the millions of procedures that are done every year very few actually end up with negligence claims because very few actually are a problem. But nonetheless those few that get there they tend to have big pay-outs associated with them and that, of course, has repercussions in terms of people wanting to do that sort of work and also in terms of the cost of doing that work and insuring.

TIM COX: How exposed then are doctors, and specialists in particular, to negligence claims and these much larger pay-outs in the wake of this decision?

MUKESH HAIKERWAL: In the wake of this decision there are cases that are waiting to come before the courts with other methods of contraception that have failed and we know that contraception is never 100%, like any other medical procedure is never 100%, and the quoted rates for operative sterilisation are around one in one thousand or less. Of course with the best training, with the best operative skills and the best will in the world there are things that still do go wrong and people need to have that explained from the time of the procedure.

TIM COX: Don't patients have a right, though - if they go in for a procedure expecting to come out being infertile, don't they have a right to expect to be infertile?

MUKESH HAIKERWAL: Absolutely, but there is also the understanding that as part of that procedure there may be a failure. If you do a vasectomy, for instance, the vas deferens, the tubes tend to have the habit of growing back together again. In this particular case that wasn't the case and the surgeon admitted that one tube was not tied, so that was a problem. But in general these are very safe procedures but unfortunately nothing is ever 100%.

TIM COX: Will the way the consent for a surgical procedure is presented to a patient need to be changed then to say that there is a risk here and I hereby waive my part in the risk?

MUKESH HAIKERWAL: There certainly needs to be continuing work around the consent issue. People need to understand that what they're consenting to and what the down-sides are and the fact that things may not be successful 100%.

In terms of waiving people's rights we believe that people - if something has gone wrong in a procedure - we believe people actually do have the right to have compensation and that's why we've been so keen to make sure we sort out this medical indemnity crisis.

TIM COX: How quickly do you need to act then, because if there are other cases pending now it is an opening of the floodgates, isn't it?

MUKESH HAIKERWAL: Yes, it's something that we've got our legal people looking at right now to see how these things can be shored up. We've seen a lot of change in the State law situation, we've seen a lot of change in the Federal level but what we've seen is this whole situation is certainly nowhere near solved and that all we've got is bandaid solutions so far and we're having to have a very good look at the entire situation and see if there's a better way of doing it to make sure the procedures are available, to make sure that they are affordable, and that people do get compensation if they're due it, and that that compensation is affordable by the doctors who are paying for it.

TIM COX: Does the medical profession as a whole need to change, to water down the expectation patients have of the fallibility, I guess, of doctors?

MUKESH HAIKERWAL: I think we are a victim of our own success. We do so many things and we do them so well and because we've done them so well and people are surviving to a ripe old age and doing lots of things the expectation has become huge and we need to be very conscious that people's expectations are huge and to explain to them that yes we can try and do things and make things better but sometimes they may not go very well.

TIM COX: Thanks for your time this morning.

MUKESH HAIKERWAL: You're welcome, Tim.

End