9. ANATOMY OF MEDICAL DEFENCE FRAUD: A case-study
"....(M)ost miscarriages of justice pass undetected. This means that the number of miscarriages in Australia, although difficult to estimate with any accuracy, is potentially very large........The fabrication, manipulation and suppression of crucial evidence has been an integral feature in miscarriages of justice."
Kerrington K et al 1991
It is not common knowledge that MDUs are so experienced that they have often and very successfully defended the indefensible. One way they do this is to not to exchange medical reports before the trial, using them as trump-cards to surprise the plaintiffs' solicitors so that they are caught unpreprared for this sttack..In legal terms, it constitutes "Trial by Ambush". Another method is to take advantage of the Bolam Principle - a doctor is not negligent as long as MDU can produce one colleague from anywhere in the world to say that s/he would have treated the patient in the same way. Yet a third maneouvre, if not a single colleague would come forward to support the doctor, s/he could always be coached to become an expert to give false opinion evidence ('turn defendant into expert' principle). For all the trickery, some authorities have blamed the adversary system. However it is obvious on close study that it is not the use, rather the abuse, of the adversary system, that has caused so many plaintiffs to miss out on compensation rightfully and legally theirs.
"Their (MDUs' officials') main obligation would be to act with integrity and not in contravention of any law".
Sue Fenwick. Public Interest Advocacy Centre (PIAC) dated 8 July 93
In this regard, MDU's officials failed in its "main obligation to act with integrity and not in contravention of any law" in the following decided cases:
1. Jarret Ooi, Dr TT Ooi v the Right Reveren Monsignor Dominic Aloysius Vendargon (Titular Roman Catholic Bishop of Kuala Lumpur), Assunta Hospital, Dr Gwen Smith (defended by MDU), 1985
2. Cary Ooi v MDU (NSW Consumers Claims Tribunal , 1989)
In both, MDU appeared to have masterminded a conspiracy with its solicitors ( Shearn & Delamore in Malaysia) and some members to breach and did breach the following sections of the Crimes Act 1900 No. 40:
s 101: Threatening letters
s 176: Director or officer publishing fraudulent statements
a 176 A: Directors etc. cheating and defrauding
s 178 A: Fraudulent misappropriations of noneys collected or received
s 178 BA: Obtaining money etc. by deception
s 249 C: Misleading documents or statements used or made by agents
s 249 F: Aiding, abetting etc.
s 284: Forging documents &c used as evidence
ss 327 - 330: Perjury and like offences
s 331 Contradictory statements on oath
s 334 Subornation of perjury &c
s 336 Tampering with witnesses
ss 345 - 351: Abettors and Accessories
The above breaches of the Crimes Act clearly constitute "criminal contempt of court" as it interfered with the administration of justice. Yet, the secretary of MDU categorically assured the MCA that its 'integrity is beyond reproach' and it 'is not connected with criminal activities'. He further stated that MDU "does apply its published code of ethics"
"MDU exists to provide medico-legal advice and assistance to its members and, in accordance with its M & A of Association, may (NB: not shall) compensate members' patients for injuries resulting from demonstrable negligence. Its integrity is beyond reproach....The MDU is not connected with criminal activities.. It is committed to the use of ADR in dispute resolution...It does apply its published code of ethics to its actual operation and defences....The MDU's Medical Secretariat are registered medical practitioners and do abide by the ethical codes of their profession."
Lilienthal C. Personal communication, 29 Sept 1993
He repeated the union's respect for the laws of the land but contradicted himself by admitting that it "does not have its own code of ethics" less than two months later when he wrote:
You express MCA's concern about an inherent conflict of interest within the MDU. There is no conflict.... I stress that the MDU has to be satisfied that there was no negligence... As far as Dr Ooi's claim is concerned, the Malaysian courts (sic) found that there was no negligent treatment. If we do not abide by the laws of the land and the decision of independent adjudication, there is little likelihood that any disputes (sic) will be finalised. As requested, please find attached a copy of the MDU's Memorandum and Articles of Association. MDU does not have its own code of ethics but expects its members and its staff to abide by the code of ethics of the professional group to which they belong.
Lilienthal C. Letter to MCA, dated 24 Nov 93
MDU reiterated its use of independent experts and respect for the local laws
"Independent experts are invited to express their opinion on causation and liability... MDU works within the legal framework of the state or country in which claims are brought and does not use obstructive tactics to deny patients their legal entitlement.... patients are entitled to frank, honest and objective assessments".
Lilienthal C. AJMDU (1990). 4, 2, 17
It is clear from the defence of Ooi v Smith, and Ooi v MDU that MDU has engaged in criminal activities, in contrast with its own claim of being law-abiding and its integrity as beyond reproach. Accordingly, it should not be surprising to read an impartial and knowledgeable view from a medical consumer activist:
"Compensation obtainable (from MDU) has become detached from logic and reality as the path to it is via the legal process and often a courtroom battle. A battle where an MDU may choose to spend many times on legal costs what an equitable negligence payout would have been. This is in order to pre-empt other claims of a similar nature by setting a legal precedent and to send a message to others who may be considering (or have launched) legal actions."
Allan A. Submission to Taskforce on QAHCS. 6 Oct 95, Sydney
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