Cheryl McDonald: Legal realities

DATA on malpractice risk according to specialty in Australia is consistent with other data, including recent US research. As in the US, data collected by MIGA shows substantial variation in the likelihood of claims and size of payments across each specialty.

It is, however, vital for doctors to keep their medicolegal risk in perspective, regardless of their practice specialty.

If you consider the number of patient interactions doctors have each week, let alone over a working career, claim frequency is really quite low.

The adage “you will be the subject of a claim at least once in your medical career” is not necessarily correct. Analysis of our portfolio of doctors shows that many doctors are never the defendant in a medical negligence claim. Of course, conversely, some doctors have been the subject of multiple claims.

Then there is the issue of whether the claims have merit. Our experience is that many claims are without merit, which generally means they are defended vigorously and ultimately discontinued.

National tort reform and a greater focus on risk management for medical practitioners have resulted in a stabilisation and, indeed, a decline in claims frequency in the past few years. However, at the same time, our MIGA figures show that the number of complaints against medical practitioners has increased, perhaps coinciding with the establishment of complaints commissions by states and territories.

Undoubtedly some specialties are at greater risk of legal claims. Plastic surgeons and doctors practising cosmetic medicine have a greater claims frequency than many other specialties. Even so, the average cost of these claims is low. Managing patient expectation is the key to managing risk in this particular area.

Obstetrics is another higher risk specialty and obstetricians are more likely to face a claim than many of their colleagues. Claims against obstetricians are, obviously, potentially significant in terms of quantum.

The US research on malpractice claims showed a distinction with respect to paediatricians, with an average payment of more than US$520 000, compared to about US$345 000 for neurosurgeons. This reflects our experience that although paediatrics is a lower risk specialty, claims involving paediatricians can have the potential for a significant payout, particularly if the paediatrician is involved in the care and treatment of babies following delivery.

However, as with the US research, many claims in Australia do not result in payments to plaintiffs. This fact often comes as a surprise to medical practitioners as it is not well publicised.

It is not a simple matter for a plaintiff to succeed in a claim for compensation based in medical negligence. And it certainly is an expensive exercise especially when there can be no guarantee of success.

For doctors involved in a claim that is successfully defended there is usually no direct financial cost. However, without exception it does result in indirect financial costs and, most importantly, significant emotional cost.

Great legal representation and support is the key to managing the process if you become the subject of a claim.

Ms Cheryl McDonald is claims department manager with MIGA (Medical Insurance Group Australia).

Posted 10 October 2011