Emergency medicine — no longer a casualty

schemes that exist in New Zealand'? and Sweden" a system of nofault insurance has attracted wide interest. Under the NZ scheme, a victim is required only to show that personal injury by accident has occurred. The benefits that are provided under the Accident Compensation Act 1972 are more comprehensive and certain than are awards under common law and the no-fault principle precludes contributory negligence from reducing the award. 10 It was thought that doctors would no longer need indemnity insurance against claims of negligence but the Accident Compensation Corporation which administers the scheme interpreted medical injury in restrictive terms. Thus, risks of action at common law still exist in situations of the omission of treatment, the failure to obtain fully-informed consent, a negligent diagnosis, and assault and battery or trespass to the person. Therefore, doctors continue to subscribe to the medical-defence bodies, although at a reduced rate. Where a plaintiff is covered by the Accident Compensation Corporation, he or she is statute-barred from bringing an action in common law against the doctor. 11 The Swedish system is similar but is funded entirely by the bodies that provide health services; claims and payments are administered by a consortium of private insurance companies. Those who suffer injury as a result of negligence still may sue under tort law but few do so. Both the NZ and the Swedish systems have some disadvantages notably, that of cost although the Swedish system fares rather better than does the NZ system as a result, in the main, of the extensive social-security systems that exist in Sweden. The expense of these systems has been the main argument for the failure to introduce nofault schemes into other countries; however, it has been questioned as to whether a no-fault scheme where awards are comparatively small and administrative costs are minimal really would be more expensive than is a tort system where some awards are enormous and most of the money that is available is used to run the system. 10 Other potential disadvantages of a no-fault scheme are: the possibility of abuse where the definition of accidents is loose; the possibility of the exclusion of some medical accidents, causing inequities; and the possibility of the removal of the deterrent effect of tort law on the maintenance of standards within the medical profession. Another means of changing the existing system that has received attention is the introduction of contingency fees in an attempt to increase the access of patients to the legal system. One view is that contingency fees and the acceleration of legal proceedings are of limited relevance to medical-negligence cases." There are many, and often good, reasons why a significant delay may be experienced in the pace of litigation towards trial or settlement. The other use of contingency fees is as a means of providing a possible private alternative to legal aid. The virtue of this argument is the substitution of the judgement of an individual solicitor for the monopoly of the local legal-aid committee. However, the American evidence shows that contingency fees far from represent a poor person's route to justice." Lawyers will not take on cases unless the certainty of winning and the likely profit are sufficient to justify the risks, and often will take on relatively-low-value cases that arise from road-traffic accidents where the outcome is highly predictable. They are reluctant to take medical-malpractice cases because the return is insufficient to cover the costs; medical malpractice is seen as a risky area because of the intrinsic uncertainty of causation and so lawyers have a strong incentive to reject all but those cases on which their medical advisers give them strong support. It would seem that a system of contingency fees would need careful research before its implementation within Australia. It is clear that obstetricians face a dilemma in practising their specialty in the face of increasing threats of medical litigation and increasing medical-insurance premiums. To follow the American example and simply to opt out of practice will prove to be disastrous for the specialty within Australia. Solutions to this dilemma must involve a consideration of the many factors that are entailed. Obstetricians must set and maintain high standards of care. Realistic expectations of modern obstetric care must be communicated to consumers. The media must be responsible in publicizing advances in obstetrics and must not engender false hopes. The legal profession must examine the means by which plaintiffs have access to proper and adequate compensation and consumers must be counselled properly as to the effective means by which proper litigation is instituted. The accountability of medical practitioners must be maintained. Finally, we must address the views that are embodied in the following statement:' The law is a clumsyinstrument for dealing with dynamic human relationships and as suchshouldbea lastresortas a solutionfor the individual, although it has a valuable functionas a deterrentand a sellerof standards. Educationof both patients and doctors, consumer pressureand alternative dispute resolution are powerful agents of change which should be fully utilised in the hope that litigation will rarely need to be resorted to given the human suffering such action reflects. ROSS SWEET