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5. HIDDEN COSTS OF MEDICAL DEFENCE

Doctors in NSW commit suicide at a rate higher than the general population. Why is this happening? Amongst the causes recently identified by the NSW AMA and NSW Medical Board (Medical Observer [MO] 7 June 96, 1) are: uncertain career prospects, fear of showing vulnerability, fear of litigation, substance abuse, work stress in the public health system and patients' willingness to sue for malpractice.

Litigation itself should not pose a real threat, since Dr Megan Kearney of United Medical Defence has concluded that it is most unlikely that GPs would be sued. And yet medical defence organisations (MDOs) continue to warn all their members of a litigation crisis. Quite rightly, Dr Kimberley Ivory (MO 7 June 96, 31) questions what this hysteria is doing to the profession. Stern warnings, ad nauseam, of crisis when many experts and the exhaustive Tito report into Professional Indemnity have revealed none (MO 1 March 96, 43) would doubtlessly be wrecking minds and breaking hearts. The standard of medical care must suffer as a consequence, and it does, by an unhealthy emphasis on defensive medicine to avoid litigation..

Work Stress has been reported to have hit the roof in the public sector, substance abuse is common in the general population, and uncertainty abounds in any profession. Yet doctors kill themselves more readily and more often than their patients. Clearly there must be other reasons driving doctors to the wall.

Fortunately for medical practitioners, their medically injured patients are often very forgiving. Published papers have shown that most patients sue as a last resort to seek answers for medical mistakes. Contrary to the proverbial medical culture of burying mistakes, many doctors are happy to admit their mistakes (confession being very good for the soul) and hand out sincere, deep-felt apologies. If only their hands are not tied.

Admission by doctors of mistakes is tabooed by MDOs, whose solicitors have the view that it is an admission of liability. The offer of apology receives a mixed message - it is publicly espoused, but privately eschewed (as it could be construed as admitting fault, and therefore prove too costly). So, in respect of medical mishaps, doctors are not truly at liberty to offer sincere apologies.

A young intern, in response to an investigation into the death of a young patient from cerebral haemorrhage, admitted in writing that he lacked the experience, failed to consult his registrar and was truly sorry. Needless to say, his MDO was not impressed by this too honest admission- and objected vehemently to the fact that he had not obtained its advice prior to making the statement. It instructed him to boycott a formal departmental investigation into the death, and denied that the boy was ever admitted when formal admission papers stare any sighted reader in the face!

Was the young doctor happy at being saved by his concerned MDO? He would have been, except for the tenacity of the dead boy's father, who continues to relentlessly pursue the truth in his quest for justice, rather than compensation. Ten years after the event, both parents are now victims of post-traumatic stress disorder caused by repeated bureaucratic cover-ups, not bungles. A decade later, the young doctor must be constantly troubled as the case continues to attract publicity. He has to be inhuman not to suffer sleepless nights and anguished days. Who knows when breakpoint is? When that happens, who should bear responsibility but his expert advisers.

It has been revealed that every year in NSW a doctor commits suicide simply because he or she has been sued for negligence (one disposed of his family before killing himself) . In a research I did, all colleagues informed me that they would never kill themselves because of litigation - unless their MDOs refuse to indemnify them (which is every MDO's right) or instruct them to rewrite Medicine from the witness box. The rewriting of Medicine to suit the occasion has been confirmed by Dr Paul Nisselle to be bad medical defence and bad law. Showing great respect for the judiciary, Dr Nisselle admitted that "More often than not the law gets it right. Good medicine measured by the peer groups is its own best defence" (MO 7 June 96, 31).

However, there have been many recent attacks on judges who dared to pass decisions against doctors in favour of plaintiff-patients. It is interesting that there is never any professional condemnation when questionable medical defence succeeds, as when a defendant is coached to become an expert in her or his own case, and give testimony at variance with standard medical practice.

One consultant paediatrician did just that - and saved herself and her MDO millions of dollars in all future litigation involving neonatal jaundice by stretching the limits of physiological jaundice and denying the very existence of kernicterus! Like the young medico mentioned earlier, she would not have the knowledge and courage to bend the truth, bar expert medico-legal advice again. Perjury charges have been levelled at her, conspiracy charges at her medical and legal experts. They would not be stressed, because they know 'might' is 'right' in law. Nonetheless, hers is a different story of human frailty.

Doctors are intelligent professionals, with great knowledge of medicine and strength of the human spirit. They do not commit suicide unless they are overwhelmed. However, any human conscripted to participate in any act to obstruct or pervert the course of justice easily (and sadly) fits the bill. They know that a punishment may be around the corner.

Nick Lush (MO 7 June 96, 6) poses a crucial question: "where will the solutions (to increasing stress amongst GPs) come from?" Because inadequate, at times improper, medical defence has been identified as one of the causes, some answers at least must come from MDOs. A question arises as to whether doctors in Australia should also have their private legal advisers (as many do in USA), because solicitors for MDOs face a conflict of interests - those of MDOs or their doctor-members. Be that as it may, all MDOs members expect ethical medical defence - nothing more, nothing less. Where they have clearly not been negligent, they would want their days in court. It was Mr Peter Forbes, Chief Executive of Medical Defence Union, who recently said "(D)octors fear the employment and disciplinary consequences of having settled, even informally". (Australian Doctor, 31 May 96, 58)

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