New Zealand’s no-fault system

Ron PatersonNZ Health and Disability Commissioner

San Diego, June 2004

Mr A, a 36-year old man, presented to a medical centre with chest tightness and shortness of breath. He had a strong family history of heart disease

The nurse took an ECG which indicated significant myocardial infarction

Dr B, the on-call doctor, diagnosed a chest infection and sent Mr A home

Case study: Misdiagnosed MICase study: Misdiagnosed MI

Mr A died at home 2 hours later

Post-mortem showed the cause of death to be ischaemic heart disease

Case study: Misdiagnosed MICase study: Misdiagnosed MI

Image: www.ecglibrary.com

Since 1974, medical malpractice claims have been effectively prohibited in New Zealand, even for gross negligence

Why can’t Mr A’s family sue Dr B?Why can’t Mr A’s family sue Dr B?

Compensation for medical injury is provided by the Accident Compensation Corporation, a state-funded insurer

Concerns about the quality of medical care are resolved by an independent Ombudsman, the Health and Disability Commissioner

Why can’t Mr A’s family sue Dr B?Why can’t Mr A’s family sue Dr B?

AccidentCompensation

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Complaint resolution

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discipline

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Unhappy patient

Currently, compensation is available for:

(1) medical error (the failure to observe a standard of care reasonably to be expected in the circumstances); and

(2) medical mishap (a rare and severe adverse outcome of treatment that is properly given)

Which medical injuries get cover?Which medical injuries get cover?

In 2005, medical compensation will be widened to cover ‘treatment injuries’

The reforms will remove any consideration of fault, rarity or severity

These reforms will cost US$5.37 million per year on top of the US$29 million spent currently

Are any reforms planned?Are any reforms planned?

Ruth Dyson, ACC Minister

The Accident Compensation Corporation accepted that Mr A’s death was the result of medical error

Mr A’s widow received compensation for funeral costs and loss of income

Case study: Misdiagnosed MICase study: Misdiagnosed MI

Any person can complain to the Health and Disability Commissioner, orally or in writing, alleging breach of a patient’s rights

Who can complaint to HDC?Who can complaint to HDC?

Which rights are in the Code?Which rights are in the Code?

The Code of Consumers’ Rights sets out ten rights relating to the quality of care

The Commissioner’s jurisdiction does not extend to issues of access of funding

What is the Commissioner’s role?What is the Commissioner’s role?

Education Learning, not lynching

Complaints resolution Resolution, not

retribution

Mr A’s wife complained to the Health and Disability Commissioner about the poor standard of care provided to her late husband by Dr B

Case study: Misdiagnosed MICase study: Misdiagnosed MI

How are complaints resolved?How are complaints resolved?

HDC supports low-level complaints resolution

Advocacy and mediation are often successful

Investigation is reserved for serious complaints

Judi Strid,Director of Advocacy

What is the investigation process?What is the investigation process?

Inquisitorial, not adversarial

Expert advice on clinical issues

Can examine systems issues

Cases are decided “on the papers” – usually no face to face hearing

Case study: Misdiagnosed MICase study: Misdiagnosed MI HDC asked Dr B to respond to Mrs A’s letter

of complaint

Dr B accepted that he had misread the ECG and failed to recognise the seriousness of Mr A’s condition

Dr B provided evidence that, at the time of the consultation, he had been suffering from undiagnosed concussion following an altercation with his neighbor

Case study: Misdiagnosed MICase study: Misdiagnosed MI

The evening of the death, Dr B had visited Mr A’s widow to apologise and offer his condolences

Dr B normally had no problem reading ECGs, but he nevertheless undertook further training following this incident

Case study: Misdiagnosed MICase study: Misdiagnosed MI

Mrs A’s complaint was upheld – Dr B had failed to exercise reasonable care and skill when assessing Mr A’s chest pain

Dr B’s personal circumstances (the concussion) did not dilute his professional duty of care, but were relevant in deciding what further actions were needed

Do many complaintsDo many complaintsend in discipline?end in discipline?

714 complaints to HDC

337 investigations

106 breach findings

8 disciplinary hearings 2002/2003

Health and Disability Commissioner acts as gatekeeper to disciplinary proceedings

Medical Practitioners Disciplinary Tribunal may remove a doctor’s name from the Medical Register, place conditions on a doctor’s practice, and/or impose a fine

Professional disciplineProfessional discipline

Case study: Misdiagnosed MICase study: Misdiagnosed MI

HDC decided not to refer this case forward for possible disciplinary action

HDC sent a copy of the report to Dr B’s professional body, the Medical Council, to keep on their records

HDC also sent a copy to Dr B’s employer, the Medical Centre, which confirmed new procedures for sick staff

Medical Discipline in NZ 1994-2003Medical Discipline in NZ 1994-2003

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Individual complaints offer a window of opportunity to improve health services generally.

Building a fence Building a fence at the top of the cliffat the top of the cliff

Case study: Misdiagnosed MICase study: Misdiagnosed MI In response to Mrs A’s complaint, the Medical

Centre implemented a policy on staff impairment and illness, including a stand-down period after head injury

The anonymised report was widely disseminated for educational purposes, discussed in a medical journal, and placed on HDC’s website

www.hdc.org.nz (02HDC01833)

No greener pasturesNo greener pastures

New Zealand remains the safest place in the world to practise medicine.

Professor Peter Skegg, 2003

The bottom lineThe bottom line

New Zealand’s ‘no fault’ compensation system is consistent with efforts to improve the quality of health care but needs to be complemented by a flexible and effective complaints system.

Peter Davis, Inaugural lecture, 2000