Discuss about the Medical Negligence for Civil Liability Act.
Tort reforms of 2002 and the Civil Liability Act 2003 are the principle legislations that govern the area of medical negligence in Queensland Australia. Legislations for personal injuries[1], Limitations of Actions Act and other civil Acts also govern certain policies developed in the field and have lead to the protection of both doctors and patients. The present study focuses on doctors as the interest groups of the study.
Rogers v. Whitaker (1992)[2], is a landmark judgment that has brought so many cautions and notices that are handed over to patients in advance for any medical procedure involved and has helped to set a certain standard of care in medical negligence. The liability of the doctors has reduced further with some liability being vested upon the patients in cases of contributory negligence. This has been done through the principles of proportionate liability in cases of negligence and the burden of damage is shared by the insurers also. In cases of contributory negligence it was an absolute defence for negligence, but now the liability can be measured for the individuals involved in the case of negligence by apportioning the claim through proportionate negligence and also through certain provisions that give further exemptions to defendants by way of presumptions and compulsory reductions in damages under the Civil Liability Act.
Doctor’s duty of care was earlier considered as a serious responsibility on the society as a whole and the patients negligence was a mere responsibility to self. However, in Vairy v Wyong Shire Council (2005)[3], it was observed that the Plaintiff’s contributory negligence was equally serious as was the duty of care of the Defendant. This is because the patient also has a duty to society by way of social security and other obligations in a civilised society.
The increase in negligence litigation and the insurance crisis brought before the government of Australia the need to bring about a change in the negligence laws[4]. A committee was henceforth setup to make changes by developing the medical negligence law keeping in mind the rules for setting standard of care, duties of the practitioners, limitation of bringing up litigation etc. were all reviewed and based upon the recommendations of the committee laws were amended keeping in mind the Trade Practices Act, so that the doctors right of trade and profession is not infringed. It was claimed in the report that the law of negligence in Australia is “unclear and unpredictable” that the courts apply and the damages that are awarded in the cases of personal injury are also huge. The Ipp report also focused on the insurance crisis, wherein the doctors were being taken out of practice due to huge litigation claims of negligence. Ipp panel thereby set up a clear standard of care that the doctors have to follow as the doctors were worried that the laws did not provide for a clear version of the set of standards that they have to adhere to so as to avoid any liability. Ipp brought the implementation of the Professional Practice Defence under the Civil liability Act[5], which provided that any professional while performing his duties would not be liable for any civil damages claim if according to the opinion of his co-professionals he acted in a manner that is widely accepted by his colleagues under the professional standards.
When a claim for negligence is successfully proved, the claimant gets awarded damages. The idea of monetary damages in return of psychiatric, physical injury is to put the claimant into the position he/she would not have been if the injury had not occurred. The purpose is also the deterrence of negligence. This deterrent effect is nullified by the full insurances against mal practise suits. While in most other lines of professions, professionals go for less than complete coverage, in medical professions they go for complete insurance cover. The social effect of a complete insurance cover is the nullification of deterrence and it insulates the sanctions of the tort system[6]. Reason for medical professionals going for complete coverage may be the randomness of such claims. The other reason can be the cost of prevention. While a doctor cannot charge a patient very high for preventing injuries by taking utmost care possible, he goes for insurance premiums instead. In the long run, doctor can charge higher fees from patients to cover the cost of insurance premiums. It becomes a very rational choice for the doctor to substitute insurance for prevention. A very identifiable policy effect of medical negligence is the legal costs on the claimant. The claimant may enter into a CFA (Conditional Fee Agreement) or “no win no fee” which is usually unable to obtain because a lawyer demands money “up front”. An individual can check any insurance policy to cover the legal costs.
It is required from the doctors to show utmost duty of care, in Sullivan Nicolaides Pty Ltd v Papa[7], the Supreme Court has held that the duty of care of the doctor towards the patient would depend upon the type of services he is providing, is it an operation, diagnosis, advice or providing some information only. Foreseeable risk of injury that would be caused to the patient is one of the criteria’s that needs to be seen while judging the duty of care the doctor had. It is for the courts to decide the amount of duty of care that the doctor owes[8], and needs to be seen in each and every case individually depending upon the circumstances.
The policies of medical negligence are such that they take into consideration the economic as well as non economic factors also. In cases where damages for economic liability can be assessed, non economic losses are also compensated. In Melchior v Cattanach & Anor[9], the point to be considered before the court was regarding the damages to be paid in case of negligence of sterilisation of procedure being performed that failed. It was somehow considered that the fault was also of the plaintiff in giving birth to the child as she had not completely disclosed the medical condition of her fallopian tubes being operated, and also that the doctor did not check for the same. In passing the order for damages the main consideration was of the cost of rearing a child, wherein the Supreme Court of Queensland observed that the present claim is completely economic in nature, however while considering this case it has to be noted that rearing of the child would not always be burdensome on the parents as the child might in future become a boon to the family or just a liability, which cannot be assessed at present. It was observed that the cost of bringing up a child is not a forseeable loss[10]. However the court did not consider this case as a case of economic necessity that would bear damages of only economic nature in cases of bearing a child due to negligence of the doctor.
Proportionate liability concept in the field of medical negligence is a concept based on the tortfeasors recovering from other tortfeasors to satisfy the damage borne by them from each other’s fault. Law Reforms Act[11], the act provides for tortfeasors to recover from other tortfeasors for the damage caused by them personally to the other, and also that the recovered damage must be just and equitable. This is because not only did the defendant negligence caused loss/harm/injury to the plaintiff but also because the plaintiff himself was at fault in making the defendant cause such injury to the plaintiff and hence it is not the defendant who shall pay the damages entirely.
Civil Liabilities Act[12] of Queensland deals with proportionate liability, which is applicable only in cases of claims of purely economic loses or damages caused because of duty of care. The policy of proportionate liability helps to reduce the costs incurred by the defendants. This is done by making the plaintiff claim the losses from all the parties that are involved in the act which accused the plaintiff the said loss. It helps in safeguarding the targeted deep pocketed defendants who had to pay the entire damages. The damages are to be paid only for the apportioned injury caused by that defendant[13]. This has helped the doctor’s liability of paying damages less as insurance companies share the burden.
It has been reported in a medical Journal is Australia, that the patients who file for medical negligence do not look for damages; rather they want stringent laws in the said field. It has been found in a survey by WHO that Australia has the highest number of medical negligence cases, with 18,000 people dying every year through preventable medical negligence, 50,000 suffer from permanent injury every year because of medical negligence and 80,000 patients are hospitalised in a year due to medication error. Problems of children not being properly taken care of also arises in certain cases where parents cannot afford extra hospital costs[14]. The problem arises as doctors have a closely knit group because of which it becomes difficult for people to prove cases of medical negligence as they cannot afford to get opinion of experts, i.e. other doctors to give evidence in the court, as they cannot afford the charges of doctors outside Australia. Rockhampton Hospital[15] in Queensland recently had a lot of complaints with regard to blotched surgeries, although it has been in news that the situation has been taken care of and that the panel is reviewing the problems, however, it is known to the general public that in these cases the hospitals always get away with it until the matter is litigated.
Conclusion
In terms of proportionate liability the laws are clear and developed as an equitable balance eis drawn by making all the defendants equally liable. Also in cases of contributory negligence the equity is maintained. Proportionate liability[16] also allows the plaintiff to get damages that are purely economic in nature and hence it can be said that the law needs no reforms in this field.
In cases of disability caused by medical negligence the damages can never be said to be enough as the person would not get back the same health/ body again which he/she had. Although the amount of strictness could be increased by making cases of either nature occurring by a doctor or cases of extreme impairment/disability being given huge damages and compensation so that it creates a deterrent in the minds of the wrongdoer[17].
It is to be kept in mind that the only party being affected by medical negligence is not just the patient who is treated wrongly, but also the doctor who are sometimes misinformed or rather kept away from certain problems by the patients due to which the doctors end up causing more injury to the patients. The cases of medical negligence in Australia are humungous, but the legislation is still lagging behind and is under developed. The proportionate liability concept helps to bridge the gap by bringing a better system of damages as the liability is not upon one person and the modes of pocketing the rich defendants have been limited, due to a systematic way of calculating damages and sharing the liability among all the defendants based upon their own fault.
References
Law Reforms Act (Qld) 1952
Civil Liabilities Act, 2003
ABC Capricornia, “Standard Of Care Called Into Question At Rockhampton Hospital” (2014) https://www.abc.net.au/local/stories/2014/05/07/3999486.htm
The Australain, “Parents Five Year Ordeal Of Shuttling Between Hospitals With Son Who Has Cerebral Palsy” (2016) <https://www.mauriceblackburn.com.au/media/1668/parents-five-year-ordeal-of-shuttling-between-hospitals-with-son-who-has-cerebral-palsy-the-australian-04062013.pdf>.
Harold Luntz, Loss Of Chance In Medical Negligence (2011) Austlii.edu.au <https://www.austlii.edu.au/au/journals/UMelbLRS/2010/14.html>.
Kit Barker and Jenny Steele, “Drifting Towards Proportionate Liability: Ethics and Pragmatics” (2015) 74 C.L.J.
Jennifer Yule, Defences in Medical Negligence: To What Extent Has Tort Law Reform In Australia Limited The Liability Of Health Professionals? (2016) <https://www.austlii.edu.au/au/journals/JlALawTA/2011/6.pdf>.
David W. Marks, “Professional Negligence: Contribution And Contributory Negligence” (2016) 15 The University of Queensland Law Journal.
Catherine Mah, A Critical Evaluation Of The Professional Practice Defence In The Civil Liability Acts (1st ed, 2014) <https://www.austlii.edu.au/au/journals/UWALawRw/2014/4.pdf>.
Law Counsel of Australia, “National Trends In Personal Injury Litigation: Before And After “Ipp”” (2006) <https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/wright_report.pdf>
Sullivan Nicolaides Pty Ltd v Papa [2011] QCA.
Vairy v Wyong Shire Council (2005) 223 CLR.
Rogers v Whitaker (1992) 175 CLR.
Henderson v Low [2001] QSC
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA
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