An Australian oncologist and researcher has proposed a novel two-stage process for reforming the litigation-based healthcare injury compensation system and adopting a no-fault scheme. He says this would take a decade of forward planning in Australia and requires a timetable for action. (Please support our petition for no-fault compensation for Australian injured patients.)
Professor Richard Epstein, Visiting Scientist at the Garvan Institute of Medical Research and Adjunct Professor of Medicine, UNSW St Vincent's Healthcare Campus, recently published an article in the UK’s Future Healthcare Journal suggesting a short-term and a long-term approach to reforming the compensation system[1] The present medical litigation system, he says, is “acknowledged to be inequitable, non-transparent, all or nothing, resource- and labour-intensive, subject to advocacy bias, encouraging of wasteful defensive medicine, and ineffective in deterring negligence”.
Plaintiffs, he says, experience no-fault systems as fairer than fault-based systems both in medical injury and other contexts. The main factor perpetuating the adversarial medicolegal system is the role of medical indemnity insurers: adversarial litigation is their core business. While there is controversy over whether total costs would rise under a no-fault system, “[t]he priority of a no-fault scheme must be to improve patient access to a fair hearing of their claims, and to compensation.”
Professor Epstein believes the end result is likely to be a blended litigation/no-fault system rather than abolition of the litigation system. The expansion of artificial intelligence and clinical decision support software may also drive the move towards no-fault systems for managing financial losses.
In the short term, he says, patient access to compensation could be improved by use of single court-appointed experts to identify errors and liabilities. If the parties disagreed with the expert’s assessment, they could then move to a traditional adversarial trial using opposed expert witnesses. The suggestion of single court-appointed experts on liability is simple, practical and would encourage thinking about how to facilitate patient access to compensation. The NSW Supreme Court appears open to such a proposal: it has encouraged mediation, limited the number of expert witnesses, penalised parties calling more experts than required, and enabled the use of single expert witnesses agreed by the parties wherever possible[2].
We agree with Professor Epstein that a no-fault compensation scheme should be introduced alongside the litigation system, rather than replacing it. Experience in Sweden has shown that where both systems coexist, the vast majority of claims are processed by the administrative compensation scheme, leaving only a small minority to go through the courts (18,000 administrative compensation claims and about 20-25 court cases each year[3]). There will always be a small number of very serious or complex claims that need to be dealt with judicially.
Professor Epstein’s article highlights the need for practical steps and forward planning in the move to a no-fault compensation scheme. His article should be read by health professionals, lawyers, policymakers and anyone else interested in this issue.
If you believe Australia’s injured patients are not getting a fair go under the current system and deserve better, please sign and share our petition and Professor Epstein's article.
Gratefully,
Sarah and Vickie
[1] Epstein, RJ. Regulation: To Find Fault Is Easy, To Find No-Fault Is Fair, Future Healthcare Journal, Vol 10 No 1:1-5.https://www.rcpjournals.org/content/futurehosp/10/1/85 Accessed: 01.04.2023.
[2] NSW Supreme Court Practice Note SC CL 7 for the Professional Negligence List, issued in May 2020: http://www.practicenotes.justice.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/a476042cfd07ec80ca257410001cbbdc?OpenDocument Accessed: 03.04.2023.
[3] NHS Litigation Reform report, UK House of Commons Health and Social Care Committee, April 2022, paragraph 156: https://committees.parliament.uk/publications/22039/documents/163739/default/ Accessed: 18.06.2022.