Issue 8 / 7 March 2011

UNSATISFACTORY outcomes in medicine are too common. There are multiple causes, one of which is medical errors.

In our society the response to medical error is typically legal, rather than investigative and remedial. This should be deplored by both the profession and the public.

The clash between the legal and medical systems rarely leads to a decrease in the likelihood of future error. Rather, a defensive approach is fostered that encourages concealment of error and the attribution of blame. This balkanises the parties and makes solutions more difficult to find.

The legal response to error and harm is reflective not only of our culture and history but also of the need for patients to ascertain information about the error and receive a financial remedy if loss has occurred.

Given that this is the setting in which we find ourselves, the availability of the defence of “peer professional practice” (that an action is not negligent if the professional acts in a way that is widely accepted by his or her peers) gives some comfort.

An article in the latest issue of the MJA draws attention to some important limitations of this defence. The authors point out that the defence is not a substitute for the need to properly warn patients of the material risks involved in a procedure.

They also demonstrate that the requirement to practise according to widely accepted professional standards implies the need to be abreast of contemporary clinical practice. Surely this is the purpose of continuing professional education.

Consequently, there is no justification for the practice of purely “defensive” medicine. The article also highlights a negative interaction between the legal and medical cultures.

In a recent case that relied on the peer professional practice defence, the testimony of one of the expert witnesses was discounted because, when forming his opinion, he consulted a colleague about her views on the case, which led the court to doubt the witness’s standing as an expert.

In contrast, the medical view is that consultation in the face of doubt is protective of the patient and not a sign of weakness.

As a doctor, the legalistic approach of the court in this regard reinforces the perception that the law is an ass, that it will never be understandable or reasonable, and that the solution to medical errors will never lie in the legal sphere.

As a profession, this mandates that we make the study and minimisation of medical error and unfavourable outcomes our own. It is time to responsibly admit and embrace error and empower ourselves to grow.

While “the truth will set you free”,* US President James Garfield was probably closer to the reality of the process when he supposedly added, “but first it will make you miserable”.

* John 8:32.

Dr Annette Katelaris is the editor of the Medical Journal of Australia.

This article is reproduced from the MJA with permission.

Posted 7 March 2011

10 thoughts on “Annette Katelaris: Legal solution to error deplorable

  1. Dr Kim Lowe says:

    The reality in medicine, as in other walks of life, is that we do not deal with certainties. Much can go wrong and does, in spite of the best efforts and intentions of medical practitioners. The promise of certainty is a pretence. Doctors are quickly found to blame for the uncertainties that occur in their work. Patients go to lawyers who act on their behalf.
    It is only lawyers who put something in writing, believe it to be certain and then defend its certainty at all costs. This is absurd of course but the legal culture takes this attitude to its top levels. The better at it you are, the higher in the profession you rise.
    Everyone else knows that this is pure fantasy. Unfortunately we are expected to live in the legal world and solutions to legal fantasy are managed by lawyers themselves.
    Have you ever had cause to complain to the Law Society or Legal Ombudsman about a lawyer’s actions? Have they ever been of any use?

  2. Anon says:

    Not only the legal solution, but the bureaucratic solution may lead to a failure of natural justice. I once made a serious complaint about a registered health professional. The first response, before ANY investigation whatsoever, was something along the lines of “Don’t worry – we’ll get him”. This was from an experienced investigator with a government agency who did not actually realise at first that I was a doctor. (Doctor stereotypes – another interesting issue). While in one way this was what I wanted to hear, my heart sank as I realised the implication this attitude had for all other health professionals, including myself. “The ‘Yes Minister’ approach to bureaucracy that drives this sort of unjust behaviour” – Great phrase – I totally agree.

  3. GP ian says:

    As a ‘victim’ of a claim made against me for an adverse event still in the process of going through the courts , I know the strain and effect it has on my day to day practice.
    The claimant isnt interested in ‘negotiation’ and admitted to be only wanting compensation and not information.
    Now, I tend to restrict who I see and try and limit what I do in order to minimise future risk of being sued again.
    This means I also refer many for procedures where before I would have performed them myself.

  4. CJ says:

    It’s unfortunate that an article about litigation doesn’t mention the real alternatives available in many jurisdictions – Health Complaints Commissioners. This process can result in legally-privileged conciliation between patient and doctor/medical service, and removes the lawyers, the defensiveness and the blame-game. Often, a patient is after an explanation and apology, rather than money – and these answers are much more easily given in a conciliation environment, rather than once lawyers are assigned. I have seen some very good results via the Health Complaints process.

  5. Dr Andrew Kinsella says:

    Richard, the issue of politically correct stitch up jobs by our board is a quite separate one and deserves to be dealt with at length elsewhere. I have seen several stitch up jobs done myself – quite appalling miscarriages of justice. As far as that goes we need to be aware of the “Yes Minister” approach to bureaucracy that drive this sort of unjust behaviour. To put it simply – one of the main functions of the health bureaucracy is to be seen to be tough and to be seen to be doing something – so that when issues like the Patel case surface the relevant board can point to their list of recently claimed scalps and can quickly establish a paper trail of blame so the offending question can be removed from the public eye as quickly as possible.
    The obverse side of this equation is that I have personally suffered very significant adverse health consequences as a result of the persistent failure of a branch of our profession to keep themselves informed of overseas developments in their field. This is not an easy thing to consider taking to court – as the whole of this subsection of our profession was virtually united in their ignorance.
    So my sympathies are just as much with the patient as with the doctor.

  6. Richard Middleton says:

    Exactly right…
    For far too long the “deadeyed interested layperson” has had far too much authority over medical practitioners who have been unlucky enough to be around when things went wrong in spite their very best efforts (ie, a not unexpected effect in medicine.).
    These authorities are quick to censure and suspend before any conclusions are reached, usually on an ignorant ill-considered whim. This ‘suspension’ from any capacity to earn and support their family, always has appalling consequences for the practitioner and their family.
    Who benefits from this?
    And let us not start on the extraordinary time it takes these characters to “investigate” the simplest factoid.
    who benefits from this? Nobody, except those who have been gifted the authority to apply these often undeserved and recklessly applied sanctions without any risk to themselves, hiding as they are behind “board’ status, of consequence or compensation, when their hapless and helpless medical victim is shown to be just that.
    It does not help that these people, this medical board, is aided by mendacious medical practitioners, who are either themselves time expired or unusually interested in harassing their colleagues, by proxy.
    There are at least three excellent practitioners that I personally know who have been stitched up by both ‘the board’ and respective colleges.
    In all cases, there have been grotesque miscarriages and abuses of process that would have got a legal practitioner struck off or even gone to jail.
    The board and colleges get away with it…
    Time to demand a ministerial review of the process and persons involved in this wicked and primitive system, a system that has more to compare it to 16th century Camera stellata tactics than intelligent modern medicine and legal law.

  7. Dr Andrew Kinsella says:

    I disagree that seeking legal remedies to medical incompetence is deplorable. We should be insisting that the system protect both our reputations as doctors and our safety as patients by ensuring that legal remedies for unsatisfactory practice are readily available.
    The extreme example quoted by “ex Queensland Health” in no way refutes the validity of that observation.

  8. ex-QLD Health says:

    I couldn’t agree more about the “culture of blame”. Several years ago I had occasion to speak to a senior Qld health administrator regarding staff shortages, and mentioned that mistakes were being made because junior staff were working after hours without adequate supervsion (surely this is a “no-brainer” when there are not enough senior staff to go around?). I was appalled when the reponse was to demand details of the incidents so that a witch-hunt could be initiated, and naturally I refused to release them. Of course, no new staff were hired. What do you expect from an administration who, when given a dispensation from the relevant college to hire 1.5 registrars per consultant instead of the previous one to one ratio required, decreases the number of consultants instead of hiring more registrars! And pats themselves on the back about the money saved…….

  9. Mace says:

    Australia is a “blame” culture. I have worked in the public sector in NSW, Qld and WA and outside of clinical meetings I have found the blame mentality firmly embedded. If we are going to make any impression we first must change our working environment and our colleagues in medical adminstration need to pick up the baton.

  10. amanda says:

    I couldn’t agree more. Well said.

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