Few indemnity claims go to court

THE vast majority of doctors who face a medical indemnity claim will not end up in court, new data on claims from 2008–09 show.

The figures on public and private sector medical indemnity claims show that only 6% of claims were finalised through a court decision, while 29% were settled through negotiation with the claimant and 65% were discontinued. (1)

Dr Sara Bird, manager of medicolegal and advisory services at MDA National, said the reported low rate of claims going to court was consistent with experience at MDA National.

“That happens partly because doctors don’t want to go to court … also, courts want the parties to resolve the matter before it proceeds. Often both parties will be willing to compromise”, she said.

Discontinued claims included those withdrawn by a claimant or closed by a claims manager due to long periods of inactivity. Discontinuation was rare for larger claims — only 8% over $50 000 were discontinued, and 2% of those over $500 000.

Lisa Clarke, general manager of claims at Avant, said the results regarding resolution and discontinuation of complaints were generally in line with Avant’s experience.

“Avant’s experience is relatively consistent, in that for claims over $100 000, we achieve resolution by way of a negotiated settlement in about 90% of cases, with about 5% being resolved by the courts and about 5% being discontinued”, she said.

Dr Bird said the overall rate of discontinuation of cases reported was higher than her experience.

Bill Madden, a lawyer with plaintiff law firm Slater & Gordon, agreed; however, he said the majority of medical complaints brought to his law firm were not pursued.

“The great majority of people who contact us, we are not able to help them … patients may have had a bad outcome but it may not be something that can be upheld as a claim in negligence”, he said.

The report, by the Australian Institute of Health and Welfare, also found that two-thirds of claims were settled for less than $10 000, including 30% where no payment was made.

About 70% of closed claims had been finalised within 3 years of being opened, while 9% of closed claims had taken more than 5 years to settle.

Dr Bird said the length of claims rang true with her experience.

“One of the most difficult things for doctors to manage is the stamina … it’s a long time to have it hanging over your head”.

AMA president Dr Steve Hambleton said that all claims, big or small, were stressful for doctors.

“Almost every doctor experiences a claim against them at some stage in their medical career. Every claim is a concern, and it is always very stressful for the doctor, regardless of whether it is withdrawn at some stage or results in a court decision, and regardless of the amount of the payout”, he said.

“The discontinued claims are just as stressful but the stress is over quicker, as … court cases can take years.”

- Sophie McNamara

1. AIHW 2011; Public and private sector medical indemnity claims in Australia 2008-09

Posted 26 September 2011