New Zealand’s no-fault system
Ron Paterson
NZ Health and Disability Commissioner
San Diego, June 2004
Case study: Misdiagnosed MI
 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 MI
 Mr A died at home 2 hours later
 Post-mortem showed the cause of
death to be ischaemic heart disease
Image: www.ecglibrary.com
Why can’t Mr A’s family sue Dr B?
 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?
 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
Unhappy patient
Claim
Accident
Compensation
Corporation
Compensation
Complaint
Health care
provider
Health and Disability
Commissioner
Complaint
resolution
Professional
discipline
Competence
review
Which medical injuries get cover?
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)
Are any reforms planned?
Ruth Dyson,
ACC Minister
 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
Case study: Misdiagnosed MI
 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
Who can complaint to HDC?
 Any person can complain to the
Health and Disability Commissioner,
orally or in writing, alleging breach
of a patient’s rights
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?
Education
 Learning, not lynching
Complaints resolution
 Resolution, not retribution
Case study: Misdiagnosed MI
 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
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?
 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 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 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 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 complaints
end in discipline?
714 complaints to HDC
337 investigations
106 breach findings
8 disciplinary hearings
2002/2003
Professional discipline
 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
Case 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 1994-2003
90
Number of
doctors
facing
disciplinary
charges
80
70
60
50
40
30
20
10
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
MPDC
l
MPDT
Building a fence
at the top of the cliff
Individual complaints offer a window
of opportunity to improve health
services generally.
Case 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 pastures
New Zealand remains the
safest place in the world
to practise medicine.
Professor Peter Skegg, 2003
The 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