Fri, 19 Mar 2004 13:37:42 +1100
Medical treatment no-fault
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:
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.
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.
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)
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.
medical misadventure provisions are confusing and arbitrary," Ms
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."
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.
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."
Dyson said changes would also be made to ACC's reporting provisions.
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.
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."
Dyson said treatment injury would not cover all medical 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
in common with the rest of the ACC scheme, cover will be available
for minor injuries, when they meet other criteria."
Dyson congratulated the Department of Labour and ACC for their thorough
public consultation, and thanked all those who had been involved.
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."
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.
Current ACC rules for medical misadventure require a finding of
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.
Pip Desmond, press secretary, phone (04) 471 9258, 0274 575 894,
fax (04) 470 6784, email: firstname.lastname@example.org
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)
The University of Melbourne,
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