Lawyer on the case for justice NZ-style

By JAN CORBETT

Medical misadventure

A Herald investigation

Last Friday John Miller did what has become something of a habit for this Wellington barrister and law lecturer. He filed a High Court appeal against ACC over a medical misadventure case of a type in which the law has not delivered justice.

His clients, Wanganui couple Langley and Emma Atkinson, have been at war with ACC over its refusal to accept that their son's brain damage was caused by the "sub-optimal care" he undoubtedly received when he was three-weeks-old and being operated on at Wanganui Hospital.

No one argues that Reid Atkinson was given too much barium in a meal before the operation, vomited under anaesthetic, stopped breathing and had to be manually ventilated. What is lacking is any proof that these events caused his developmental problems. ACC refers to the fact he also had problems breathing after his emergency caesarean birth.

But that does nothing to alleviate the Atkinsons' sense of injustice. Fearful for their son's future, they want ACC to cover the cost of Reid's special needs as he grows to adulthood.

Says his mother: "Whether his damage was caused by the operation is immaterial. Things went wrong and someone should front up." Reid's father, who works on Tranz Rail's level crossing alarms, says: "In my job, if I make a stuff-up I could be in court for manslaughter."

John Miller will go to the High Court to argue that causation does not have to be proved when there clearly was medical misadventure. The burden of proof, he believes, should rest with the hospital and the doctors, because they have all the knowledge.

But like most of his legal peers, Miller rejects the idea of letting the parents sue. "In Boston at the moment it takes five years to get medical cases before the court. You don't want to get involved in litigation."

And, he says, with the New Zealand medical community being so small and specialists all knowing one another, "they are extremely reluctant to condemn each other" in open court.

"Let's just recognise the incapacity and compensate them," he says.

His views equate with those of other lawyers and academics who say if the situation for medical misadventure sufferers is unjust in New Zealand, it is a shambles in countries like Australia and the United States, where patients can sue.

Sydney lawyer Kerri Thomas says the Australian courts were so clogged by medical negligence suits which have no merit that a change was made to prevent claims being filed without first obtaining an expert opinion - which costs money. Plus, if the patient loses, they get stung for costs.

No one can say how many cases of medical negligence now go unreported because the patient has no money to sue.

The same is true in the United States, where one estimate has it that only 5 per cent of such cases ever reach court. There, the legal system is kinder to the victim because it is the lawyer who bears the financial risk and then takes one-third of the damages if successful.

But, says Charles Wolfson, an American lawyer working in Wellington and law lecturer in Australia, the American system is widely perceived to be out of control. Rather than culling the undeserving claims "the lawyers are all screaming for work," in the hope they can make a buck by embarrassing the doctor into settling a claim quietly rather than risk publicity.

All civil litigation carries the aura of extortion.

And doctors, living in fear of litigation, over-treat conditions or shy away from high-risk areas of practice like obstetrics and gynaecology.

Of all the systems Wolfson has seen for compensating medical misadventure, he prefers New Zealand's, in theory. "But in practice it doesn't give people enough."