Medical negligence system must change

To the Editor: A recent medical negligence decision of the Queensland Court of Appeal in a case involving damages of $6.7 million1 further supports the suggestion that Australia should follow the example of six other nations and switch to a no-fault medical indemnity/insurance system.2 The case concerned a 49-year-old woman who became severely disabled (blind and deaf) as the result of cryptococcal meningitis. Key clinical questions that the Court of Appeal judges needed to decide included the subtleties of distinguishing neck stiffness suggestive of meningitis from that due to cervical spondylosis; recognition by a general practitioner of other symptoms suggesting the gradual onset of this rare type of meningitis; and the timeliness of their referring the patient to a specialist. This case illustrates the weaknesses of the fault-based medical negligence system, which focuses on assigning blame rather than promptly assisting the catastrophically injured. This approach usually involves inordinate delays, the lottery of the court process, and the waste of valuable resources.

The patient has already waited an unacceptable 7 years for a final decision. The woman's illness occurred in 2008, but the first court decision (which went against her) was made in 2014, and the appeal decision was delivered in February 2015 (a decision that may be appealed further). To date, the complex medical evidence has been considered by four senior judges, with two finding for and two against the patient, suggesting some randomness and uncertainty in the decision-making processes. The $6.7 million awarded will not be all available to support the difficult life that lies ahead for the patient, as estimates of legal costs are typically in the vicinity of 50% of the awarded sum.2 To that waste of resources can be added the costs to the public purse incurred by the conduct of two court hearings.

We sympathise with the judges concerned, as it must be extremely difficult to make decisions on complex and contested clinical issues without specialist medical knowledge or clinical experience. In no-fault systems in other countries, such adverse outcomes — were causation or responsibility subject to dispute — would be determined by expert medical panels. Where questions about the professional performance of a doctor arise, they are referred to the relevant authority.

The Queensland decision makes very interesting reading for doctors. Those who study it should be moved to add their voices to a demand that a no-fault system of medical indemnity be carefully considered by our governments, and sooner rather than later. Such a system is necessary and inevitable — and was first recommended for Australia in 1974.2