8.MEDICAL DEFENCE: More victories than defeats.
(Plaintiffs. APLA , October 1997, p 33)
Plaintiffs' lawyers know more than anyone else that might is often right in the adversarial system. David might have slain Goliath, but that is probably not even history. It appears straight out of mythology.
At a medico-legal conference on "Doctors, their patients and the Law" held in Sydney back in 1988, the then Deputy President of Administrative Appeals Tribunal, Dr Paul Gerber shocked the medical delegates (perhaps not plaintiffs' lawyers) with this revelation:
The House of Lords in Britain and the High Court in Australia have, to a man, universally and for the last 10 years, found for the doctor against the patient, even in cases where there is the grossest negligence (Gerber 1988).
A few years later, Justice Michael Kirby, then President of NSW Court of Appeal, delivered a similar 'judgment':
There are, of course, frauds, cheats and manipulators of the damages system. They need to be identified and weeded out ... claimants know or feel the inability to take on a powerful profession, notoriously well organised to rebuff claims (Kirby 1992).
Thus both judicial experts have warned that courts might have too often decided, regardless of negligence, for defendants, who are 'notoriously' well defended. However, the identity of the 'frauds, cheats and manipulators' was not revealed. What a pity. Nonetheless, it is important to probe this matter further, with a view to elicit probable reasons for this apparent injustice for medical consumers injured by medical mishaps ('negligence' is a dirty word, politically speaking).
The use of hired guns is common and needs no elaboration. However, some specialist medical colleges, following legal decisions against their members, might meet and promptly issue consensus statements too powerful for any decision-maker to disregard at a subsequent appeal. For example, financed by medical defence organisations (MDOs), a consensus document appeared, that argues against birth injury as an important and common cause of cerebral palsy (Rush 1997).
One of the best news for injured medical consumers is: "APLA will be able to counter the propaganda which is fed to both state and federal governments by the insurance industry, business and professional associations about the 'claims crisis' and 'litigation explosion' in Australia and the alleged need to restrict rights and cap damages to cope with the perceived problem (Semmler 1997).
In medical litigation, MDOs have presented defendants as independent expert witnesses (!), even though the rules of evidence would not usually permit it. They then 'rewrite Medicine' for their own self-preservation, deceiving many inexperienced plaintiffs' advocates and decision-makers in the process. Worse still, defence teams have a tendency of launching rigorous attacks on the motivation, mental state and truthfulness of all patient-plaintiffs, in order to show them as vexatious litigants.
So as to win a war of attrition, MDOs often instruct their defendant-members to refuse patients' requests for their medical records, - and never admit liability under any circumstances. When the matter finally gets to court, defendants often testify that it is their usual practice to explain and warn about treatment, even though such advice was not recorded. Besides, members of one MDO have been advised that they may testify under oath in court that medical records had been lost or destroyed when in fact they never existed!
Over the past decade, we have studied numerous medical-negligence testimony and decisions in Australia and world-wide. We have identified enough tricks of the trade to wonder if medical defence is not medical deception of juries and judges, at least in several decided cases.
Gerber P. Conference "Doctors, their patients and the Law". Sydney, 15 October 1988.
Kirby M. Medical Observer, 4 September 19 92, p24-25, 35: Rush J, QC. The medical attack on the legal profession. Plaintiff. June 1997, 4-6
Semmler P, QC. National President's Page. Plaintiff. April 97, 2
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