Dr Tina Popa1, Fiona Milnes2
1RMIT University, Melbourne, Australia, 2RMIT University, Melbourne, Australia
Medical negligence claims arise when a medical practitioner has breached their duty of care and that breach has caused injury to the patient. Despite emphasis on open disclosure and continuing legal education, extant literature suggests that medical practitioners have little knowledge of the legal consequences of medical error and are rarely involved in the dispute resolution process following negligence. When a medical negligence claim is instigated, the parties are encouraged to partake in mediation pursuant to statutory civil procedure requirements. Mediation is an opportunity for practitioners to participate in the dispute resolution process which allows them to learn from the medical error, ascertain how the alleged negligence can be avoided in the future and thus promote best practice. Yet doctors rarely participate in mediation, with this role subrogated by the insurance representative. The purpose of this paper is to evaluate the opportunity and need for medical practitioners to have mandatory legal education in negligence, designed as a tool to mitigate the risk of medical errors and patient harm. This paper draws on a 2016 qualitative study with interviews with 24 senior tort lawyers specialising in medical negligence. The majority of participants stated that doctors’ involvement in dispute resolution following medical error is severely limited. Whilst medical indemnity reform has provided industry stability and imposed caps on compensation, there is an opportunity to educate practitioners to better understand negligence liability and encourage active participation in the mediation process. The authors propose mandatory legal education for medical practitioners and active involvement by doctors in dispute resolution processes. Ultimately such reform may reduce the risk of medical error and can encourage implementation of ‘best practice’ protocol to benefit healthcare more broadly.
Tina Popa is a law lecturer at RMIT University, researching in medical law, tort law and alternative dispute resolution. Tina’s doctoral research explored the challenges in litigation and mediation of medical negligence disputes from the perspective of medical negligence lawyers. Tina is passionate about legal issues in medical negligence compensation and rights of patients, regulation of human embryo research and health practitioner regulation.
Fiona Milnes is a Juris Doctor Candidate at RMIT University with an interest in medical negligence, which stems from her career in the healthcare industry of over fifteen years. Passionate about best patient outcomes, her global experience, coupled with an education in science, business and law, has identified an opportunity for the healthcare industry to be proactive rather than reactive in the area of medical negligence.