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REVIEW OF ACCIDENT COMPENSATION FOR MEDICAL MISADVENTURE: SUBMISSION BY THE ASSOCIATION OF SALARIED MEDICAL SPECIALISTS
7 JULY 2003
1 INTRODUCTION
1.1 The Association of Salaried Medical Specialists (the Association) represents
salaried senior doctors and dentists, including specialists. The Association was
formed in April 1989 to advocate and promote the common industrial and
professional interests of our members.
1.2 The majority of our members are employed by District Health Boards (DHBs).
About 92% of senior doctors and dentists employed at public hospitals run by
DHBs are members of the Association. While most of our members work in
secondary/tertiary care in the public sector, a number work in primary care
and outside DHBs.
1.3 ASMS advises many specialist medical practitioners who are looking at taking
up an appointment in a New Zealand hospital. New Zealand's ACC system and
the low levels of medical indemnity insurance that follow from it are an
important incentive for these hard to recruit practitioners to take up a job in
New Zealand.
2 OVERALL PREFERENCE
2.1 The Association, along with many other health professional groups, has had
longstanding concerns with the way medical misadventure has been operating
since the passage of the 1992 Accident Rehabilitation Compensation Insurance
Act.
2.2 In order to receive compensation from the scheme an injured person either has
to find fault with a health professional (or more recently a system or
organisation) which does not sit well with a no fault scheme. Alternatively their
injury has to meet extremely stringent standards of rarity and severity. The
criteria for this arm of the scheme appear to have little justification in justice or
policy other than to limit costs.
2.3 This has meant that victims of the unintended consequences of medical
procedures have had to face hardship or many years of delay before receiving
the support that they should have been entitled to as victims of accidents.
2.4 It has also had the effect of pitting the patient against the professional when
often the only way to get ACC cover has been to prove negligence by the
practitioner. This has played its part in the complaint culture which so
demoralises doctors.
2.5 The present Act uses a detailed definition of accident from the previous
legislation, which is well outside the ordinary and plain meaning of the word.
It is this departure from the intent in the original scheme that has lead to the
need to exempt treatment given by or at the direction of a health professional
and consequently admit accidental personal injury that arises from this
treatment back under the coverage of the scheme using the concept of medical
misadventure. This definition of accident was put in place in a political and
social environment, which sought to limit society’s obligation to the individual
and the individual’s obligation to society. The major aim was to limit cover.
The experiment that was the 1990s in New Zealand is now over and it would be
appropriate to look at the definition of accident and bring it back to the original
concept of personal injury by accident. This would mean that the discussion of
personal injury that is the unintended result of medical procedures could take
place in the context of a no fault system that limits the hardship of thoseinjured
by accident to the injury itself and not to its financial consequences.
Throughout these comments we use the word accident in its ordinary meaning
for preference.
2.6 This option has not been included in the review and the Association
acknowledges that it is a larger task than the present review. The Association,
therefore, welcomes this review and the clear intention it signals to bring the
victims of medical accident more fully under the no fault scheme. We believe
that if the results of this review are to change the Act in line with preferably
option 3 or even option 2 that it will result in an improved situation for patients
who find themselves unintentionally injured as a result of a medical procedure
and will improve the environment for our members who do their best to
minimise risk of harm but cannot always avoid it.
2.7 Reporting by ACC of doctors who have been the subject of finding a medical
error or of medical misadventure has angered our members. In particular the
idea that those who have given treatment entirely properly that has had an
unintended severe outcome should be reported on as if they have been at fault
and that conclusions should be drawn that they are somehow committing an
undetected error or are being covered for by colleagues is repugnant. A large
number of misadventure claims involving one practitioner may mean that she
or he is practising in a more difficult area of medicine or it may mean that he
or she has been the victim of the mix of panic and opportunism that
surrounded Graham Parr.
3 ACC MEDICAL MISADVENTURE STATUS QUO
3.1 The proposal for changes by regulation to the current criteria so that a slightly
wider group of injuries would be covered by increasing the rarity level from 1%
for certain conditions would not meet the Associations main concerns with the
current scheme: namely the inferior cover for those that are the victim of an
accident in the course of health care than those who suffer the same
disadvantage through any other accident and that the “no fault” scheme still
preserves the concept of fault for health professionals.
3.2 An interesting point was raised by one of our members in the course of our
consultation on this issue. He points out that the same injury (some times in
the pursuit of the same “cure”) that is sustained when some one is being
treated by a non-registered practitioner would be covered by ACC.
3.3 We hope that this option is present only for the purposes of comparison and is
not seriously contemplated as an outcome of this review.
4 OPTION 1: CHANGES TO MEDICAL ERROR AND MEDICAL MISHAP
DEFINITIONS
4.1 The assessment of the reviewers is that widening the definitions of medical
mishap and medical error will widen the cover for patients injured in the course
of treatment. The suggested replacement of the “severe and rare” criteria by
an “endurability rule” would have the consequence of discriminating against
those suffering an accident who have an underlying condition that makes the
adverse consequences more serious. The same criteria would not apply if they
were hit by a car.
4.2 Accompanying this change is the intention to continue with a finding of fault for
medical error but not against an individual by limiting it to an assessment that
fault was present but not who was at fault. This would not meet the concerns
that follow, such as the defensive practice of medicine and a disincentive to
learn from mistakes. It is also likely to be interpreted by accident victims and
the general public as obscuring individual blame. If there is an assessment
that there is fault the automatic follow up question is where and the response
by ACC of “can't say” will be perceived as coy and has the potential to
unnecessarily smear an entire group of professionals.
5 OPTION 2: COVER FOR PREVENTABLE UNINTENDED MEDICAL INJURIES
5.1 The Association sees difficulties with this approach. Firstly our members
comment that preventability is always an ex post facto assessment and
therefore often arguable. The example given (giving penicillin to someone with
a known allergy) illustrates a further problem in that preventability becomes a
surrogate for fault. The only way ACC can sustain a no fault stance is if it
never asks the question and leaves it to those agencies whose job it is to
investigate fault. Option 2 is also inequitable. A minor injury sustained by the
victim of a speeding driver was preventable but gets covered.
5.2 Individualised risk assessment is likely to be contentious and where
consequences are lack of cover for individuals certainty and transparency
would be hard to establish. This would retain some of the disadvantages of the
present scheme where expert opinion differs (for error, rarity and severity)
criteria and would extend the area of contention more widely. The criteria of
“preventable” would presumably have to be interpreted as reasonably
preventable by a normally cautious competent practitioner or team all of which
would have to be defined by ACC and then by the review and appeal process.
5.3 The process outlined in the flow chart appears to have omitted a step which is
spelled out in the explanation and definition and that is the injury must be
unintended. This may be intended as implicit in the definition of injury but
becomes confusing in comparison with option three where whether the injury is
an intended part of the treatment is explicit.
5.4 The option has advantages as it would extend cover to a group of accident
victims not presently covered by the scheme and makes possible a less
oppressive statutory reporting regime. This option would be an improvement
on the current situation.
6 OPTION 3: UNINTENDED INJURY IN THE TREATMENT PROCESS
6.1 The Association believes that this is the best of the options outlined in the
review. It has the advantage of increasing the numbers of accident victims who
are covered by the scheme and, hopefully, will remove ACC from the “name,
shame, blame” nexus for health professionals.
6.2 We do have doubts however about the endurability rule and believe its
expression in the review document is unclear under this option. Under option 1
the rule extends mishap and under option 2 endurability covers the more
serious consequences of a preventable injury. The process outlined under
option 3 for determining claims suggests that if an injury were neither the
normal, expected or intended outcome then cover would be automatic. The
first example in the box and the definition of endurability suggest that none of
these criteria by themselves would be sufficient and that the injury must firstly
be unintended and then must be either abnormal or unexpected or even
abnormal and unexpected.
6.3 It is only the addition of these two later conditions that make it necessary to
import the endurability criteria, which appears, despite its name, to penalise
the already ill.
6.4 The logic of the scheme should be that if an injury is part of the intended and
inevitable outcome of treatment then it shouldn’t be covered. This would
eliminate the more obvious items such as compensating for the pain of an
abdominal cut in the course of an appendectomy. Conversely the unintended
result of the failure of the cut to heal normally should be covered.
7 OTHER CHANGES TO CONSIDER
7.1 Generally medical professionals would prefer that any investigation of
treatment that they provide be carried out as close to the event as possible
when memories are fresh and information easily obtainable. The spectre of
complainants emerging as a result of the soliciting of complaints and media
coverage many years later as happened with Graham Parry is frightening.
Accordingly we have opted for the shortest expiry suggested.
7.2 This preference is balanced by the need for compensation for unintended
injury, which emerges many years after the treatment takes place. If the
scheme is amended so that no fault needs to be found in the actions of a
professional (as is provided for in option three and to a lesser extent in option
2) then the need for a time limit becomes an issue less of natural justice and
more a practical problem.
7.3 Members of the public who have suffered an injury will normally initially seek
treatment or diagnosis rather than compensation. In our view it is important
that that initial professional contact be a broadly trained diagnostician, normally
a GP. Training these practitioners as to the (hopefully) wider availability of
compensation and support for patients inadvertently injured in the course of
treatment would be necessary. Removal of the fault principal should help with
any reluctance to imply error.
7.4 The Association suggests that the word medical or clinical should not be in the
new name for medical misadventure because they suggest a narrower focus
than is intended “unintended treatment injury” is our preference but “treatment
injury” and “unintended injury in health care” would also meet that criteria.
The additional term accidental treatment injury is suggested to reaffirm our
view that, at some point, the Acts definition of accident needs to conform more
closely to the plain and ordinary meaning of the word.
8 OTHER COMMENTS
The Association has tried to make constructive comments that will help the
implementation. We welcome this initiative and look forward to the
government delivering on its commitment to reform the medical misadventure
provisions in ACC. At present these provisions are at odds with the no fault
principle and do not aid the building of a safety culture in New Zealand.
