Issue 28 / 1 August 2011

MORE than 60% of doctors in Australia have been sued or investigated for negligence at some time in their working life.

Medical practitioners are surprised when their performance is called into question. Many have a feeling of invincibility based on a lifetime of accumulated educational and professional successes.

The public add to this assumption by placing complete faith in their selected practitioner — until some misadventure occurs. Then the blame game starts.

In their own medical territory doctors are usually confident of their knowledge and can withstand intellectual threat from patients or colleagues. However, the same doctors may not perform well in court.

Fortunately, not all cases of negligence reach a court hearing. Many are settled by negotiation or mediation. Such an outcome obviously minimises emotional trauma for the defendant doctor.

Medical litigation rates in NSW and California are said to be the highest in the world. It is not clear what drives this, whether it is financial gain, a sense by the patient of having being wronged or interpersonal conflict between doctor and patient.

When a complaint leads to litigation there are many factors that affect the final result. Such factors are often completely independent of whether negligence has occurred. They include perceptions of arrogance in the doctor; a perceived lack of duty of care by the doctor; attribution of blame by the doctor onto the patient; inadequate medical homework by the prosecution and defence teams; or problems associated with expert witnesses.

In the hospital setting, after any incident or complaint the doctor must visit the patient and discuss the factors that led to the incident. These visits are not a statement of culpability but rather a recognition that management and duty of care are still partly in the hands of the initial doctor.

That doctor, who may now not be the principal treating doctor, should make sure that no further events (such as infection) compromise resolution of the initial event. Failure to visit is seen by the patient as an admission of negligence.

The exposure of a doctor’s name in the mass media does nothing for personal or professional reputations. However, by being open and transparent with colleagues, a doctor facing litigation will find great emotional support, giving much needed reassurance of being part of a professional family.

When defending a claim, it is unreasonable to expect defence counsel to be cognisant of international medical literature concerning the condition in dispute. The defendant doctor should make it their job to amass expert opinion so lawyers can filter and present appropriately.

It certainly assists a case if one of your experts has a Nobel Prize for Medicine! It is reassuring that most senior counsel, when given the right data, are able to argue the medical case as well as the best medical expert.

Significant controversy often surrounds the place of expert witnesses. Many of them may be long retired from clinical work and yet, because of their fluent delivery and style, can be persuasive despite inconsistencies in their evidence.

Lawyers can’t be expected to have a breadth of knowledge to combat an expert witness’s obfuscation of accepted facts. It is no surprise that there is considerable legal debate as to the place of expert witnesses in our court system.

If litigation does make it to the courtroom, the result can be a resolution of the conflict, financial recompense to the litigant, or a bruising brutal scar on the doctor’s reputation and psyche. It is an extremely threatening experience and its impact remains with you for many years.

Dr Robert Read is a Sydney-based gastroenterologist who was involved in a medicolegal case in 1999.

Dr Read will be joined by two other senior clinicians — Phillip Clifton-Bligh and Leigh Delbridge — to be cross-examined by two senior counsel with special interests in medical negligence — Peter Semmler and Bernie Gross — at a seminar titled “Doctors in court” in Sydney on 8 August as part of the University of Sydney Controversies and Leadership in Health Seminars.  A seminar titled “Public and private hospitals — the good, the bad and the ugly” will be held on 15 August.

Posted 1 August 2011

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