In 204 Natalie Gray wrote a piece in the Journal of Law and Medicine titled “Reforming the relationship between medicine and the law of tort.”  In that article she examined the fault-based adversarial system that we have as applied to medical negligence claims. She concluded “The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury. This is unacceptable and suggests that the government’s medical indemnity package has missed the point.”

Her article was her opportunity to suggest an alternative approach.

She pointed out that the adversarial approach reduced the chance of early resolution of allegations of poor medical practice and encouraged delay and increased costs.

She also pointed out another side effect – “the impact of being sued may be out of all proportion to the alleged mistake, or indeed, the adverse outcome.”

Another relevant observation she made – “Defensive medicine impacts negatively on the doctor-patient relationship.”

She came to the conclusion that the creation of a non-adversarial method of awarding compensation to patients, coupled with a non-threatening environment in which doctors may analyse the shortfalls in any aspect of their medical practice would hopefully lead to a higher satisfaction among injured patients and higher -quality overall patient care.

By developing a structure in which doctors can facilitate the awarding of compensation to deserving patients, some of the public mistrust of the medical profession may be dissipated.

Similarly, by sparing doctors the indignity of having their patients assert that they breached their “standard of care”, rather than just having made a mistake, doctors may once again learn to trust their patients.

She advocates that all stake holders would be better off if a system that generates antagonism and mistrust was replaced with a new system that is based on co-operation.

What are your thoughts on this?

How can the different perspectives and interests of patient, doctor and medical indemnity insurer be reconciled and accommodated in a way that would allow the majority of disputes to be handled a way that removed the causes of antagonism and mutual distrust?

How can ADR strategies be used earlier and in more effective ways to promote early resolution and settlement  and spare all concerned from having to engage in pre-trial litigation process first and incur substantial legal costs first before they open the door to ADR processes?

Your insights or perspectives on this would be highly appreciated.

AUSTRALIAN DISPUTE RESOLVER

Moderator: Christopher Whitelaw