Reforming the relationship between medicine and the law of tort

Abstract

The Australian Government's medical indemnity package is predicated on the belief that the current crisis is primarily one of insurance. However, an examination of the fault-based tort system illustrates that, irrespective of their insurance status, doctors are profoundly affected by the adversarial process and their response to it is leading to sub-optimal patient care. This article argues that the adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead, doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury. This is unacceptable and suggests that the package has missed the point. This article proposes an alternative medico-legal tort scheme which attempts to overcome some of these problems.