Tort Law Reform in Action – Questions and Answers
Advertising by lawyers
PRESIDENT: To Mr Madden
Many issues have been raised by the three presentations, not all of which are directly related to the subject that we are discussing. Nearly 20 years ago, I was involved in the young lawyers’ section of the Law Society when a lot of work was done on advertising. At that stage, there was virtually no advertising by lawyers at all and a lot of work was done on what sort of advertising should be allowed. The fundamental underpinning of advertising was a reasonable level accreditation system. It is rather galling to see, I think, a very good accreditation system which had been introduced for the purpose of enabling the public to identify individuals who have some measure of skill in a particular area, not really being allowed to happen any more. Other than probably agreeing with me, is there anything you would like to say on that?
MR MADDEN: No.
PRESIDENT: The example that was quoted all the time was the practitioner in the middle of Australia who would say he had a lot of admiralty law experience.
The quantum paid since the reforms
MR DAVID SCARLETT: Legal. To Mr Hunter
I chair the Insurance Lawyers’ Group of the Law Council of Australia and am slightly right of Genghis Khan. You commented that there was very little change that you have seen in relation to the quantum of damages following the Civil Liability Act changes. I have noticed a case called George v Lifese Steel Erections which, for reasons I won’t go into, involved one quarter of the man’s entitlement being determined at common law, the old principles, and 75 per cent of his damages being calculated under the reforms. The fellow had been fairly badly knocked about, but the end result was that the 25 per cent of his damages, calculated on the old common law principles, exceeded the 75 per cent calculated under the Civil Liability Act. You say there is very little difference in the number of dollars. Have you had a look at that case, and would you care to comment on why it is so?
MR HUNTER: I have not actually looked at that case. What I have said was that, in the large claims, the differential is 25 per cent down between the pre- and post-reform. I have given you the differences at the lower end. I said a claim of around $200,000 is not a lot of differential.
To me the differences you quote in that case are extraordinary and they don’t fit with what we assess as being the difference between the two. The Diamond v Simpson difference, $10.8 million down to $8.5 million, that’s the sort of difference we see as happening in the larger claims, so that must be a very strange factual situation. I find it very difficult to accept. I will have a look at it in due course.
A real increase in disciplinary matters?
MR ANDREW DIX: Medical Board, legal. To Mr Hunter
You said in your figures showing the changes in the pre- and post-reform that the numbers or the expenditure on matters going to disciplinary process has gone up to 40-odd per cent, I think. I don’t have the exact figures at my fingertips. There is nothing like that occurring, as far as I am aware, in references made to the Board or to the Health Care Complaints Commission. Bill referred to the effect of the Walker inquiry. There certainly was a spike in people ringing up about things that had happened in hospital. I don’t think that a lot of that translated into real complaints. I am curious to know what that 40 per cent represents, because it is certainly not coming across in what we are seeing at the Medical Board. I think I speak for the Commission as well, because we see their information. It doesn’t seem to be happening there either.
MR HUNTER: Our data are showing a lot more claims and the average cost has gone from something like $5,000 to nearly $10,000 per matter. It is as simple as that. That’s what our data are showing. I can’t give you any more information as to why that is.
MR DIX: It sounds like you are spending more on each one, not increasing the actual number.
MR HUNTER: There is no doubt an increase in the absolute number that we are spending money on.
PRESIDENT: Perhaps since I am the beneficiary of some of this, I should comment. In some areas, there seems to be an increase. This is very relevant to what Michael Fearnside was saying, that there seem to be a lot more disputes between VMOs and area health services, where area health services, or some individuals, are acting absolutely irresponsibly in the discharge of their duties. It is no wonder that so many of them are going to be fired. I think it is in the public interest that that is about to happen.
There are other areas, other than complaints through the standard processes. For instance, the number of doctors coming to the notice of the Professional Services Review Scheme under the Health Insurance Act seems to be increasing as well.
Diminishing resources at public hospitals
DR JULIAN LEE: Medical. To Professor Fearnside
A minor point, Michael. You commented about the increased number of proceduralists withdrawing from the public system ‘at least I took that to be what you said’ and working in private hospitals. Isn’t there another side to that entirely? Namely, that access to theatre time and to resources in public hospitals, has deteriorated over a long period of time, so why wouldn’t you get out? When I was a VMO at Prince Alfred, I likened myself to being a travel agent selling tickets in an airline that didn’t fly a reasonable metaphor.
Surely if people are going to continue to practise, they will practise where they can, which is in the private sector. But a far more important ramification to that is that, as this big issue of training for surgical specialties has hit the press yet again, the public hospitals are under-resourced, that they can’t supply the training places and that the Colleges are faced with an impasse. Would you comment please?
ASSOCIATE PROFESSOR FEARNSIDE: Yes, that’s quite so. During the so-called ‘crisis’, when premiums were high, I think that all doctors, and surgeons in particular, looked to where they could maximise their dollar earned per unit of time, because that was simply a cost of practice. I think that a lot of people very carefully re-examined not only their practices, but also their lifestyle.
Leaving that aside, the issue of access to do the work you need to do is very important. There are disincentives built into the public hospital system to working in them, in that all the rewards are negative and it is a question of more pain or less pain. As a result of that, I think, people have drifted away. It is a subtle change, but from where I work in Western Sydney, with some responsibility for the overview, it is happening slowly but surely in a lot of areas. Doctors will drop a clinic here or a theatre list there, and while they may still ‘be there’, there is less commitment to the public hospital system.
I think that is a very major issue that has not been thought through because, while they are still on the books, they are there less frequently. That is going to be a very major issue for public policy.
Sharing of medical responsibility amongst part-timers
DR PETER ARNOLD: Medical. To Mr Hunter and Mr Madden
Michael Fearnside mentioned the work force issues and part-time work and lifestyle. I would like to ask the two lawyers what their experience is of negligence cases arising from just those circumstances, where in private practice with people working part-time, patients are falling through the cracks and not getting continuous attention from the same doctor seeing doctor A one day and doctor B another. Could you tell us if that set of circumstances is having an effect on the cases that you are seeing?
MR MADDEN: I think there are two broad issues to do with working hours that have the potential to be quite interesting. Certainly there are cases, and there perhaps always have been cases, where patients are being seen by different doctors over different days in a hospital setting, and whether it is assessment of a wound condition or assessment of the neurological status, there are perhaps problems that arise over time as to the assessment of the deterioration or otherwise in a particular patient and that can give rise to litigation.
The other issue which I noticed in the newspaper, I think the day before yesterday, was a comment out of Queensland about excessive working hours and whether or not that might cause a problem. Somebody very helpfully sent me an article from Germany. There are limitations in Germany on the hours that a medical practitioner can work. Unfortunately the article is in German. I can’t read German. If anyone can that would be helpful.
I have been told of one case I haven’t heard what became of it which involved a needle-stick injury to a medical practitioner which involved Hepatitis C. He had been on call for something in the order of 56 hours, and then jabbed himself with a needle, presumably through tiredness or partly through tiredness.
Both of those issues provide challenges. Whether or not the way we deal with that can be substantially changed, I really can’t say just yet. Allan might have other instances.
MR HUNTER: I don’t, Bill. I agree that there are cases where clearly it is a real issue and I suspect we will see more of them.
Reduction in number of major claims
MS JULIE HAMBLIN: Ebsworth and Ebsworth, Legal. To Mr Hunter and Mr Madden
Looking at the provisions of the tort reform legislation, there don’t seem to be any reason why one would expect a significant downturn in a number of large claims where you have, for example, a significantly brain-damaged plaintiff. You know they will be worth less but it will still be worth a substantial amount of money such that they are worth bringing. My impression anecdotally is that those claims haven’t returned following the claim spike. Talking to other people around the traps, they are also reflecting that view. Is that true from your perspective and, if so, what explanation do you give?
MR HUNTER: Unquestionably that’s true. I gave you that comparison. We had in 2003 a sixth of the large claims that we had in the spike. I firmly believe that most of the claims that were around, if I can use that terminology, which were big, were brought during the spike and. of course, there are those claims or those matters that we are yet to see. There is plenty of time for them to be brought because generally they involve infants. I suspect that we will see some development there in the next two or three years. They will come. We have just got to wait a while for them.
This spike had more impact than even we estimated. It hit United pretty hard, but I think we didn’t realise how much it cleaned out the then known claims.
MR MADDEN: I would agree with what Allan said. Obviously we issued, prior to the deadline in 2001, anything that vaguely looked like a claim. Again I think what Allan said is right, that anyone who had a substantial injury was perhaps prompted to investigate that, if only by the publicity that was surrounding the tort reform changes at the time.
Since then I have been really tired. I have been trying to deal with a whole lot of cases which were issued and, of course, we are trying to cope with the section 198L certification as to reasonable prospects, the slightly more rigorous approach taken in the professional list for verification of claims prior to issue. There has been a bit of a lull and obviously there are matters which, even from my practice, speaking personally, I would expect to issue over the next 12 months or so which probably I should have issued before now if I’d had time to properly investigate and get opinions on.
I think there will be a catch-up on those matters and no doubt they will stabilise over time.
PRESIDENT: I notice we have a few people here from GIO TMF. Is it a case, do you think, that we are merely seeing a transfer of a lot of these expensive claims from United and the MDOs over to the TMF under the indemnity scheme for VMOs? Would someone from GIO like to comment on that?
MR TIM HACKETT: GIO. Yes, I would agree with that. VMO schemes obviously transferred a lot of business across to TMF. I don’t have figures handy.
PRESIDENT: Thanks very much to our speakers for a very interesting presentation.
Scientific Meetings, Dinners and events.
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