I know a Hunter man whose wife died of melanoma. The man alleged that her doctor repeatedly failed to diagnose the skin cancer. Eventually the doctor recognised it, but it was too late.
The man, who cannot be named for legal reasons, believes the law is slanted to protect negligent doctors from being exposed in public.
“This means other patients of these doctors aren’t warned. And there’s no publicly-available record of their incompetence,” he said.
He alleged doctors use the legal system as a means of avoiding proper scrutiny of negligent practices. He said the system enabled negligent doctors to continue practicing and avoid remedial training to rectify their shortcomings.
The system, he said, allowed doctors and the organisations that represent them to close ranks and protect their financial interests and reputation. He further alleged that this amounted to an “abuse of power”.
If a victim manages to take civil action, the matter can be settled out of court and kept confidential. Victims are often made to sign non-disclosure agreements and threatened with losing their compensation if they speak publicly about the case.
The man likened these out-of-court settlements to bribery, saying they were used to hide negligence.
“It’s not compensation, it’s hush-up money,” he said.
He compared this to child-abuse scandals in the church.
“The medical profession has acted reprehensibly. They have gone to great lengths, just like the churches before them, to protect reputations at the expense of those they are supposedly there to protect.”
Legal and cultural reform was needed for doctors to accept that medical negligence must be dealt with and “not swept under the carpet”, he said.
He added that the system must become more open and transparent.
A senior lawyer who handles medical negligence cases in NSW said cases rarely went to trial. Trials were very expensive.
She said it was “100 per cent accurate” that cases were settled out of court and kept confidential, with no publicly available record of the negligence that occurred.
In NSW, medical negligence is governed by the Civil Liability Act, she said.
This means victims need to demonstrate that there was a breach of duty of care, or the care was unreasonable.
“The only way you can do that is by getting an expert report from another doctor to say the care was unreasonable,” the senior lawyer said.
She said it can be difficult to get doctors to criticise other doctors.
“It’s not an easy area of law. It is quite hard to get one doctor to say another doctor breached their duty of care.”
This is exactly what happened to the Hunter man in question.
He said the system allowed doctors to protect each other from criticism and punishment.
“They don’t want to throw their colleagues and friends under a bus,” he said.
Doctors who do agree to write a report confirming a colleague’s negligence were then vulnerable to being ostracised, bullied and victimised.
Furthermore, he alleged that doctors use the Health Care Complaints Commission system to attack each other.
Matters like this are presently being discussed in a Senate inquiry into medical complaints in Australia.