A sick system

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No fault, no winners, no losers, that was ACC's founding charter, but as JAN CORBETT finds, these days if a medical professional mucks up the victim has little chance of a fair go.

It was already late on a Sunday night when Michelle Douglas, 32 years old and six months pregnant, dragged herself into nearby North Shore Hospital.

This was late January. She'd been feeling lousy all day with crippling stomach cramps and diarrhoea.

The accident and emergency staff hooked her up to an intravenous drip and left her to wait for a doctor. A nurse arrived and added an antibiotic, gentamycin, to the drip.

Surprised, Douglas asked whether antibiotics would be all right for her baby. She was assured that the doctor had ordered it. Inwardly, Douglas was mystified because she hadn't yet seen a doctor.

Half an hour later the nurse returned and removed the drip. Half an hour later he reappeared with a doctor who explained there had been terrible mistake - the antibiotic was meant for the woman in the next cubicle with a severe bladder infection. The nurse hung his head and apologised.

Douglas just remembers her shock and agitation. All she could think of was how it had taken her 14 years to conceive this baby, her second child, and every test till then had indicated that it would be healthy. Now she was being told that because of a gross error, the baby could be born deaf or with kidney damage.

Douglas went home the following afternoon and phoned a lawyer.

At her central city law firm, Antonia Fisher receives about five calls a week from people like Douglas who believe they have been the victims of medical misadventure and want to know if they can sue.

"It surprises me that the vast majority don't realise that if there has been a medical stuff-up there is no redress," Fisher says. "Our system is appalling and it leads to appalling injustices. There needs to be recognition that mistakes lead to tragedies and those people need to be compensated."

Outgoing Health and Disability Commissioner Robyn Stent says that you stand more chance of being compensated for a mistake by your lawyer, accountant or mechanic than from one by a health professional.

She wants the victims of cases that go all the way to the Complaints Review Tribunal to be able to get full compensation for medical misadventure rather than face ..... Her recommendation is before the Government and faces opposition from the medical profession.

Stent meanwhile wonders why lawyers have not thought of invoking the Consumer Guarantees Act against errant medical professionals.

"People argue that medical misadventure is no different from a car accident, and compensation in those cases is never equal to the loss. The argument I have is that medical practice is a service, and anyone else who is delivering a service has to be accountable for their actions."

Why, she asks, should people who suffer at the hands of medical professionals be worse off than people who are harmed by the negligence of their lawyer or accountant?

Under the Health and Disability Commissioner Act, you can - in theory - be compensated if doctors are rude, deride your religion, culture or gender, but not if their actions result in, say, paralysis or if a tumour is overlooked.

As well, anyone who may have been mentally scarred from witnessing your medical misadventure - for example, a father who sees a hideously botched delivery - can go to court seeking handsome compensation for mental injury while mother and child must take their chances with ACC for compensation for physical injury.

New Zealanders who suffer from medical misadventure are worse off now than at almost any time in the county's history, with fewer avenues than their counterparts in other common-law countries to win compensation.

It is now 26 years since the Kirk Labour Government instigated a social contract which withdrew our right to sue for personal injury and replaced it with no-fault accident compensation. No other country had such a revolutionary system then or since.

The ACC system was designed to overcome any imbalance of injustice in court - such as deserving cases getting nothing and undeserving cases being awarded excessive amounts.

ACC was supposed to make it fair and predictable for all.

But subsequent changes have tipped the balance. Lump sum payments were done away with in 1992, and replaced with hard-to-qualify for income replacement. Mental trauma is no longer grounds for ACC compensation, though the anomaly remains that witnesses rather than victims can seek such compensation through the courts.

Other changes last decade - when legal aid was abolished for appeals of ACC decisions and judges raised the bar for proof of wrongdoing - now mean the "no fault" scheme sees clear winners and losers.

The winners continue to be - though with tougher compo terms - those who suffered from an injury or accident where no-one was negilent or the neglient party was broke.

The losers are those injured by the neglience of a solvent person who does not have to pay damages. In other words, people who have suffered at the hands of medical professionals.

Worst hit are those who do not qualify for what compensation is available:

* People who are not working at the time. Hardest hit aree fulltime family caregivers, children and students.

* Those who juggled their income for tax reasons.

* People whose medical injuries did not physically incapacitate them but left deep psychological scars and a nagging sense of injustice - like a young woman who lost a uterus or a breast, or a man rendered impotent, because of a medical mistake.

Of those people in work and since the National abolished lump sum payments in 1992, victims are left with income replacement of 80 per cent up to a maximum of $83,017 a year if they cannot continue working, an independence allowance of up to $61.68 a week, and assistance with medical costs, home help and special equipment. with in 1992.

Ten years earlier the lump sum payout could be up to $27,000. Had it continued on an inflation-adjusted basis, lump-sum compensation would now be $61,584.

Barrister John Miller, a former member of the ACC medical misadventure assessments committee, says: "The independence allowances are really an insult to people and a poor substitute for lump sums."

To qualify for the full $61.68 a week you have to be 80 per cent disabled. People with a 15 per cent disability, which Miller says is significant, receive about $10 a week.

And the stringent definition given to medical misadventure means that to prove a case a "medical mishap" had to be a rare and severe complication - happening in less than 1 per cent of cases - that put you in hospital for 14 days, significantly disabled you for 28 days, or resulted in death.

Of about 1000 medical misadventure claims lodged each year, 60 per cent are rejected because they do not meet the criteria. ACC expenditure on medical misadventure claims for 1998/99 was $17 million, close to 2 per cent of its yearly payout.

As the state was busily withdrawing from its end of the social contract, the judges planted their feet firmly against the courtroom door, blocking creative lawyers who had tried valiantly since the 1992 ACC cutbacks to put medical misadventure claims back before the courts.

Legal minds thought they saw an opening to sue medical professionals for exemplary damages - which are meant to punish the negligent party - rather than going for compensatory damages barred by ACC.

But that move suffered a setback last year when the woman at the centre of the Gisborne cancer scandal narrowly lost her bid for exemplary damages from pathologist Dr Michael Bottrill.

Quoting case law, Justice William Young ruled that exemplary damages for personal injury would succeed only where the negligent party had shown flagrant disregard for a victim's rights.

That test is particularly difficult when applied to health professionals, who are unlikely to set out to do harm. Human error, slipping behind modern standards or having a bad day, is - in the court's eyes - a long way below flagrant disregard .

Not only that, but successive judgments have made it clear that exemplary damages must never be used to compensate the victim.

A 1998 judgment from Chief Justice Sian Elias said that "punishment of outrageous behaviour can be adequately achieved by a relatively modest penalty."

At the time she was agreeing with a judge who decided that $15,000 was about right to punish gross negligence. Lawyers doubt they could move that much beyond $30,000 - yet it can cost $50,000 to run the trial. - Medical misadventure, A Herald investigation