Date: Fri, 19 Mar 2004 13:37:42 +1100

From: Harold Luntz

Subject: Medical treatment no-fault

Sir Liam Donaldson, Making Amends - A Consultation Paper Setting out Proposals for Reforming the Approach to Clinical Negligence in the NHS - A Report by the Chief Medical Officer, National Health Service, London, 2003, <http://www.doh.gov.uk/makingamends/ pdf/cmomakingamends.pdf> (accessed 8 July 2003), rejected the idea of a no-fault compensation scheme for treatment under the NHS in the following words:

The review specifically considered the option of a comprehensive no-fault compensation system. This was rejected because: - a true 'no-fault' scheme would lead to a potentially huge increase in claims and overall costs would be far higher than under the present tort system. Initial estimates suggest the annual bill could reach £4 billion. - to be affordable, compensation would need to be set at substantially lower level than current tort awards and would not necessarily meet the needs of the harmed patient; - it would be difficult to distinguish harm to a patient from the natural progression of a disease; - no-fault schemes, of themselves, do not improve processes for learning from error or reduction of harm to patients.

It is therefore interesting to see that New Zealand regards an extension of its present scheme to cover all medical treatment injuries as affordable. The extension has been announced in the following Ministerial Statement, which does acknowledge the difficulty of distinguishing between an injury caused by treatment and the natural progression of a disease.

Hon Ruth Dyson, ''Treatment injury' to replace ACC medical misadventure', Minister for ACC, Wellington, 16 March 2004 <http://www.acc.co.nz/for-providers/news-for-providers/press-state16-04-03.doc> (accessed 17 March 2004)

ACC Minister Ruth Dyson today announced a sweeping revamp of ACC's medical misadventure provisions to make them simpler and fairer, and improve patient safety. Medical misadventure - the term used to cover injuries caused by medical treatment - will be replaced by a new category called treatment injury.

"The medical misadventure provisions are confusing and arbitrary," Ms Dyson said.

"The new category of treatment injury will remove the requirement to find fault (medical error), or prove that a medical injury is rare or severe (medical mishap), before a patient is entitled to ACC cover. More people will be eligible for cover, and the claims process will be fairer, simpler and quicker."

Ruth Dyson said the current provisions made health professionals reluctant to be involved in the claims process because of the emphasis on finding fault and reporting medical errors.

"The new approach removes fault, making it consistent with the rest of the ACC scheme. Health professionals will be more willing to cooperate in the claims process, discuss medical injuries that occur, and learn from them. This will improve overall patient safety and help prevent injuries in the future."

Ms Dyson said changes would also be made to ACC's reporting provisions.

"The aim is to build a partnership between ACC and the health sector that moves away from the punitive system of finding and reporting medical error, encourages a climate of learning when things go wrong, and protects public safety.

Under the new provisions, ACC will no longer be required to report all medical error to the relevant professional body and the Health and Disability Commissioner. Instead, ACC must report information to the relevant professional body if it considers there would be a risk of harm to the public. In all cases, it must also inform claimants of the Health and Disability Commissioner's role in investigating complaints about the standard of care provided."

Ruth Dyson said treatment injury would not cover all medical injuries.

"Injuries that are a necessary part of treatment, such as a surgical incision, and those that result from a patient's underlying condition, will not be covered. Nor will there be cover just because the desired results were not achieved or the treatment was not 100 per cent successful.

However, in common with the rest of the ACC scheme, cover will be available for minor injuries, when they meet other criteria."

Ms Dyson congratulated the Department of Labour and ACC for their thorough public consultation, and thanked all those who had been involved.

"The consultation process is an excellent example of what can be achieved by working in partnership with key stakeholders and the public. It has led to a significant degree of consensus about the new provisions from all those involved, including claimants, health practitioners and medico-legal experts."

Medical misadventure claims currently cost around $47 million (incl GST) annually. The new treatment injury provisions are estimated to cost an additional $8.69 million a year. Legislation is likely to be introduced to Parliament by the middle of this year, with the new law coming into effect on 1 February 2005.

NB: Current ACC rules for medical misadventure require a finding of either:

* Medical error, defined as the failure of a health professional or organisation to observe a standard of care or skill reasonably to be expected in the circumstances; or

* Medical mishap, defined as a rare and severe consequence of treatment. Rare is defined as occurring in no more than one per cent of cases in which that treatment was given. Severe is defined as resulting in hospitalisation for more than 14 days, significant disability lasting more than 28 days, or death.

Contact Pip Desmond, press secretary, phone (04) 471 9258, 0274 575 894, fax (04) 470 6784, email: pip.desmond@parliament.govt.nz

There is a further brief media release of questions and answers: 'Medical Misadventure Questions and Answers', Minister for the ACC, Wellington, 16 March 2004 <http://www.acc.co.nz/for-providers/news-for-providers/q-a16-03-04.doc> (accessed 17 March 2004)

Harold Luntz.

Professorial Fellow,
Law School,
The University of Melbourne,
Victoria, 3010,
AUSTRALIA.

Home address: 191 Amess St,
North Carlton
Vic 3054

Phone (office): +61 3 8344-6187
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