7 - Negligence, professional liability and adverse events

Summary

The discomfit the medical profession has with the legal concept of negligence was succinctly expressed by Justice Michael Kirby in 1995 when he wrote:

Medical practitioners tend to see malpractice cases as involving a moral blight or stigma upon the practitioner concerned. From the point of view of the patient (and most lawyers) however, the issue is usually much more basic. It is whether a person who has suffered in some way as a result of medical or hospital procedures will be cast upon the genteel poverty of the social security system or be entitled to recover compensatory damages from the medical practitioner's insurance.

He went on to add:

To gain insurance the practitioner must pay premiums. These premiums become part of the costs of medical practice. In this way, all patients bear the cost of, and contribute to, the fund from which are paid damages when things go wrong.

Many have argued that the current system of the use of civil action by way of claims for negligence should be replaced by a no-fault compensation scheme [2–4] as exists in New Zealand and some Scandinavian countries. Others have pointed out how fraught is the concept of independent experts judging the cause of a poor or unexpected outcome after the event and have decried the gradual change in the notion of what represents negligent conduct [6–7]. These issues are not addressed in this chapter.