LEAD ARTICLE – JANUARY 2020

Why Do Doctors Fear Litigation?

I am not referring to the role some doctors assume as expert witnesses. That can be stressful, although experience and emotional disengagement usually dissipate the anxiety.

Instead, I am referring to the circumstance where the doctor is the subject of litigation. Unprofessional conduct and professional misconduct are usually dealt with by AHPRA, the Medical Boards and the relevant State Tribunals.

Negligence is often handled separately and in civil jurisdictions. The modified Bolam principle of conforming to practices accepted by a cohort of peers is the usual test.

Quite apart from the potential shame associated with being sued for negligence is the perception by some medical practitioners that justice is not always done. There is a perception that the restrictive rules applied by the Law may deny true justice, interpretations made by the Court may be unrealistic or unfair, aggressive plaintiffs and their Counsel can be particularly venomous and the whole process may take many months or even years.

These uncertainties generate great angst amongst my colleagues. Whilst common sense would suggest the subject of the action should be more philosophical and accepting of the process, fire does burn and the scars are often permanent.

Medical defence organisations strive to prepare practitioners in a variety of ways. Pre-emptive careful note-taking, establishing courteous rapport and remaining engaged at a professional level with potential claimants usually pays dividends. Emotional support is also often provided and practitioners who are targeted should also seek counsel and support from peers and professional organisations. Unfortunately, shame sometimes inhibits that type of openness and sharing, and the suffering is magnified.

I don’t have any real solution for the problem, other to say that it exists and to hope that all professionals recognise it. There is great synergy between the professions of law and medicine. Whilst I recognise that the adversarial system will persist, courtesy and caring can always be afforded.