Sue Ieraci: Right of appeal

SOME recent experiences — a barrister’s critique of the health system, a discussion with a judge about legal appeals, and an article about medical second opinions — have crystallised some of my thoughts about the way we respond to medical error.

There are real differences between law and medicine in the way complex decisions are made and reviewed. But can we learn something from each other?

Consider this — the law provides a process for appeal (eg, through the NSW Court of Appeal) as a matter of course. This recognises the complexity of legal decisions, but also allows for decisions to be overturned on the basis of process as well as points of law.

The structure explicitly recognises crucial factors, such as that legal decisions can be complex, require human judgement as well as the application of procedure, and the humans involved are fallible.

A medical analogy for judicial decisions could be the complex diagnostic dilemma. Yet there is one crucial difference — the medical second opinion is not only allowed to, but must consider any new or evolving evidence in evaluating the patient, often down the track, while the legal appeal system does not allow new evidence.

Often in medicine, the first opinion may not have been wrong, but rather based on less clear evidence. Complex diagnoses can evolve over time, as symptoms worsen or new signs appear.

Another major difference between medical diagnoses and judicial decisions is time criticality.

At the sharp end of the spectrum — in the emergency department — the competing needs of multiple patients and the need to act quickly can be in direct conflict with the requirement for a considered decision.

The dissonance between the need to be meticulous and the need for efficiency and speed can be distressing. Doctors can feel they are in a constant state of compromise.

And yet, despite the limitations of the practice setting, diagnoses that are “overturned on appeal” are generally criticised as errors, with the first practitioner held to account.

Another feature of judicial decisions — and one of the reasons they take time — is that they are published in great detail. A judge will outline the question to be considered, the evidence and the relevant points of law in fine detail.

It is this meticulous nature of the documentation that allows a judgment to be reviewed and potentially overturned by others. The judgment task may be a cognitive one, but it is supported by a team of assistants and recorded in great detail.

The process of making a medical diagnosis, on the other hand, tends to be documented in summary, and often under time pressure. Indeed, the more time pressure there is to act in a critical situation, the less time there is for documentation — either contemporaneously or retrospectively.

So, where does this leave us?

If each complex diagnostic process was given the time, skill and resources of a legal judgment, health care would bankrupt the country and the system would grind to a halt. Time-critical therapy would never be given.

We could, however, learn from the concept of “appeal” — the review of a diagnosis by second opinion could be seen as an additional step, rather than a correction of an error.

We might consider providing resources to allow for a more detailed documentation of our complex cognitive processes, though time pressure often precludes this.

And maybe, just maybe, the next barrister or judge who conducts a review of acute health care might put himself or herself in the diagnostician’s shoes, and think about what it takes to produce a sound judgement that won’t be overturned on appeal.

Dr Sue Ieraci is a specialist emergency physician with 30 years’ experience in the public hospital system. Her particular interests include policy development and health system design, and she has held roles in medical regulation and management.