Issue 35 / 16 September 2013

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.

6 thoughts on “Sue Ieraci: Right of appeal

  1. Diane Campbell says:

    Provocative and thoughtful as always!

    Barristers can’t be sued. A judge can wrongly imprison someone, an appeal cost hundreds of thousands, and the state may pay compensation to the victim. The judge is protected from any fallout and doesn’t even contribute to an insurance scheme for the compensation.

    Lawyers can be sued only for very clear malpractice- examples have included allowing beneficiaries to witness a will thereby invalidating it.

    Perhaps the best way to give the judges, who have the luxury of unlimited time and expert advice, a bit of insight to counter their perfect hindsight would be to remove some of this protection and make legal practitioners, at least at the solicitor and barrister level, more accountable for their actions. Burnside hasn’t got it quite right – he goes to court knowing what the case is about and having had time to read up on the specific case law. I don’t know what’s coming into the ED on my next shift!

  2. QUT Library Serials Unit Publisher Pkgs says:

    Thank you Sue for this piece. I think there is more that can be learnt by both professions through approaching the sorts of exercises you are talking about with an open mind. At the end of the day, there is a shared goal of high quality care for patients and the best chance of this comes from good decision-making. 

    And the features of what counts as good decision-making – such as efficiency, consistency and predictability, accuracy and transparency – are not necessarily discipline-specific (although of course the circumstances in which those decisions have to be made can vary). There is research in law, medicine, psychology, etc all of which can be called upon to support making the best possible decision within the constraints of the situation. Looking over the disciplinary fence provides an opportunity to do things better and is to be welcomed.

  3. Dr John B. Myers says:

     Rather than become idolators of insufficiency, at the expense of quality of care of patients and professional improvement, all decisions need to be evaluated and those making them accountable as these involve and determine peoples’ lives. Do not make excuses. Patient care is paramount. Add staff or obtain specialist hep and advice.Medical practice in the 20-21st century is based on open evaluation processes and controlled trials. Judicial decision-making lacks accountability and is subjective. The judicial system fails society for this reason. Longwinded judicial decisions are not “better” decisions. It needs to take a lesson from our book, not the other way round. For this to occur, there needs to be an evaluation process. In 2010 Victorian State election i stood for the introduction of a “System of Evaluated Decisions” to ensure objective and prospective evaluation of judicial decisions in respect of their impact on society and the individual and accountability. The Appeal process does not ensure independent evaluation as specific court cases, which can be provided, show, because collusion and subjectivity take over. Even the choice of judge can be predetermined and prejudged. Cost, both financial and emotional strain are significant factors which prevent or decide whether or not to appeal a decision, with only the hardiest and those determined to find justice seeing the process through. And even then there is no guarantee of a non-prejudicial hearing. Expertise in medical decision making and our collective responsibility to ensure justice and Natural justice and accountability requires objectivity for which a “System of Evaluated Decisions” is required.

  4. CKN Queensland Health says:

    I think Sue has delivered a thoughtful insight. Medical Practice is based on a Science, Art and Craft triumvirate. Legal Practice on the other hand is Art and Craft in conjugal union. They will never process dilemma in the same manner, but they can reconcile.

  5. Dr Harry F Haber says:

    I wish to comment on personal experience  where I had two complaints made about me , very close together. The nature of each was completely different. The first was a young woman very well dressed,She walked in and stated I am depressed and suicidal and I won’t something to sleep. I responded by saying I do not know anything about you and it would seem appropriate to refer you to the hospital She then responded that she had previously had unsatisfactory experience and I then offered her to have the crisis team assist her. This she also refused. I then stated I am not prepared to prescribe you anything for sleep, I suggest you consider my offer for referral, I do not know how else I can assist you, you need to decide. She said ok and walked out. After she left I called the crisis team and gave them her details. They called me a week later and stated that she refused their assistance, and would I agree to the closing the matter, which I did because when I contacted the team several days later they stated that she had been a client previously with them and I felt my role no longer needed. When I contacted the medical defense about this matter the lawyer concerned stated I had demoralized this young lady. I responded that she could have had a knife in her bag, I am a seventy year old man with no one else present. I was relieved when she left.  The second was a woman with a lump in the vulva which I diagnosed as a small sebaceous cyst and suggested a wait and see approach that it would ruptured or reabsrb. Six weeks later another doctor diagnosed genital warts, I later learned she had squeezed the cyst and maintained this had spread the wart virus.these two matters were considered together by medical council,that recommended a performance review, 

  6. Carl Scott says:

    I agree with your comments….I remember Julian Burnside saying once that barristers shouldn’t be able to be sued because they had to “think on their feet” or words to that effect. That license doesn’t seem to apply to ED or ICU….especially at 2am with a constantly changing scenario of evidence and response to therapy !

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