Is there a medical litigation crisis? Individual viewpoints on the perceived medical litigation crisis

There is a widespread feeling among doctors that the relationship between medicine and the law has reached crisis point. Many medical practitioners feel that the risk of litigation arising from clinical activities has greatly increased in recent years, largely as a result of the actions of unscrupulous lawyers. They argue that increased litigation is an unhealthy development because court action is an ineffective means of resolving problems of communication and an expensive, unpredictable and unfair way of redressing injuries. In addition — so it is argued — a climate in which doctors are under constant threat of malpractice actions is likely to be harmful to the practice of medicine itself. The trust between doctors and patients, on which such a large part of the clinical process rests, will be brought into question; orders regarding specific medical decisions by judges — who do not have medical expertise, let alone knowledge of specific clinical circumstances — intrude into the doctor–patient relationship and undermine the principle that clinical decisions should be made by doctors and patients in consultation. It is further argued that doctors under threat of litigation will order excessive tests and prescribe unnecessary treatments, thus both escalating costs and multiplying risks. Such overservicing is evidently already occurring: a 1993 report found that fear of litigation has caused a significant number of Australian doctors to change their medical practices, with increased levels of servicing and refusal to undertake high‐risk procedures. 1 Recent well‐publicised court decisions highlight the main issues. The 1992 High Court judgment in Rogers v. Whitaker , 2 a case involving a woman who unexpectedly went blind after a routine eye operation, has been interpreted by some as setting inappropriately rigid standards for informed consent. The case of O'Shea v. Sullivan & ors , 3 which concerned a young woman whose cervical cancer was not picked up by a Pap smear, is said to have put all screening programs — not just those for cervical cancer — under threat. The decision in Woods & ors v. Lowns & ors (Supreme Court of NSW, 1995), a case concerning, among other things, the use of rectal diazepam in status epilepticus, which is currently under appeal and has been the subject of discussion in the MJA, 4,5 has shocked some observers, who feel that there is now undue pressure on doctors to prescribe inappropriate and possibly dangerous treatments for epilepsy and other conditions. There are, of course, other viewpoints. Those in favour of the existing system 5,6 argue that the present legal system is a fair one and that negligent doctors should be brought to account. They say that the judicial system is laden with checks and balances to prevent or correct excessive or erroneous decisions, and that, if anything, the courts exhibit a bias in favour of doctors. They dispute that medical practice has been affected either by litigation or by concerns of doctors that they may be sued. They even contest the apparently straightforward contention that there has been a marked increase in medical litigation. As with many debates in which apparently simple questions prove to be complicated, the underlying problem is that one's conclusions are heavily dependent on the philosophical position from which one starts. This is exacerbated by the fact that most of the discussion has been conducted in the popular media, with little rigorous argument or evidence presented. For any real progress towards resolving such profound differences of opinion, a common factual basis for discussion must be established and participants must make an effort to state clearly their starting points. To advance this cause, three commentators — two medical defence organisation representatives and a lawyer involved in medical negligence litigation — consider the question of whether there is a real medical litigation crisis.