To the Editor: Recent astronomic awards for medical mishaps, and the follow-on medical indemnity crisis, bring back memories of an earlier editorial I wrote for the Journal dealing with some aspects of this problem. Its message is worth repeating.

In 1990, a letter by Armstrong was published in the Journal,1 which enclosed a newspaper advertisement for a firm of solicitors, Messrs Stern, Stern & Tanner, inviting custom from anyone who may have been a victim of "obstetric negligence", "even if your child was born as long ago as 1965 or even earlier. Initial consultation free". The Journal's then editor invited me to write an accompanying editorial.

The editorial, published simultaneously with Armstrong's letter and accompanying advertisement, was headed "No hawkers, canvassers or solicitors".2 It began with a quotation from United States Chief Justice Burger: "Never, never, never under any circumstances hire an advertising lawyer!".3 It noted that some solicitors claimed to possess special expertise in asbestos-related diseases, others claimed to know all about defoliants. I suggested, in those innocent days, that "obstetric negligence" was a new subspecialty which should henceforth be known as Stern–Tanner disease. (If Drs Guillain and Barré were to be forever enshrined in medicine's Hall of Fame, why not Messrs Stern and Tanner?)

My editorial suggested a remedial response, stating that "the law permits parties to any contract to abrogate, limit or qualify their legal rights, duties, liabilities and remedies which might otherwise arise. Thus, while the courts — both here and in the United Kingdom — tend to lean against total exclusion from liability, they are, surprisingly, more benevolent towards clauses which limit liability, however contemptuous the specified amount."

I adhere to that view. I can see no reason why doctors — save in an emergency — cannot demand that patients enter into a written "contract of treatment" which limits the treating doctor's liability to a specified amount. And while such contracts will not be valid against children born impaired as a result of "obstetric negligence", I can see no reason why the courts should deny the validity of such contracts as a matter of public policy. Why should "contracts of treatment", entered into between consenting adults, be any different from those entered into with lawyers or dry cleaners? It may seem a trifle offensive, but then the practice of medicine is treated in law as a business, much the same as touting lawyers or dry cleaners. If doctors were once put on a pedestal, this pedestal has been effectively knocked down by astronomic awards of damages freely awarded by the courts — whether by judge or jury — largely as a result of the freely expanded constituent elements of the tort of negligence.

I researched the law relating to "limitation of liability" clauses, which was published in the Australian Law Journal4 and quoted in the MJA editorial:

As far as I am aware, the law has not changed since the publication of my earlier research.