In Australia, the Medical Insurance law is designed mainly to deter medical negligence as well as to compensate patients who are injured by negligent doctors and other health-care professionals. Where compensation is concerned, several studies have shown a significant mismatch between claims and negligent injuries, i.e. only a small proportion of negligent injuries results in claims (the iatrogenic pyramid) (Lavenant, 2002, 4) and only a small proportion of claims involve true negligent injury. (Liebman, 2004, 24) This suggests that many injured patients do not sue for compensation while others readily attribute poor clinical outcomes to negligence. If an injured patient sues because he wants an explanation or apology rather than monetary compensation, then litigation may not be the appropriate solution, as opposed to alternative dispute resolution (ADR). Moreover, medical disputes that arise from poor clinical outcomes can be settled through proper post-event communication instead of litigation.
The determination of appropriate reforms usually takes into account issues on moral justice vis-à-vis public policy. More often than not, reforms are perceived by their opponents as threatening individual rights to institute legal action or to be compensated in whole. On the other
hand, advocates call for reforms to minimise undesirable the economic and non-economic consequences of excessive litigation that may have adverse effects on society. After Rogers v. Whitaker (1992) the court decided it should be decided by the patient if they are willing to undergo a medical treatment. The doctor’s responsibility is to tell patient all about the risks and benefits of any proposed course of treatment. (Love, 2007)
Medical malpractice reform is a multidimensional issue that cannot be perceived from a single viewpoint or addressed using one distinct strategy. Inevitably, there will always be controversy over various reforms. This paper aims critically to review some