G'day folks ... your friendly neighbourhood Brown here, just happened to be looking for this very decision of the Health and Disability Commissioner when lo-and-behold I came across this post.
I cannot disagree with the findings of the Commissioner. They were quite clinically reasonable. It is pointless and lazy to assess something through clothing. For example, I have seen many people listen for breath sounds through clothing. I cannot myself say I have never done this, but I do not believe I ever did. Some people may be surprised by the findings about working together and crew resource management. It is not uncommon for the more junior person to say, "ah, but I am the junior person, I have no responsibility here whatsoever," and that is absolutely untrue. Even the most junior person has a responsibility to ensure they speak up, and conversely, senior people have a responsibility to make sure this can occur. All personnel also have equal responsibility for ensuring documentation is adequately completed.
For our American readers, here is some background. Long ago, New Zealand decided we would legislate for a statutory scheme of compensation for accidents, including what is called "treatment injury," or what is commonly known as medical misadventure. For this statutory scheme, we gave up the right to sue in tortious negligence for personal injuries. We look to the scheme, not the courts. Introduced on 1 April 1974, the scheme worked wonderfully up until 1 July 1992, when those nasty Tory pols got involved and decided to get their mitts into it. That aside, all-in-all, despite significant problems, the scheme still on balance works very well. The scheme is comprehensive and provides for treatment, rehabilitation, and compensation on a nearly entirely no-fault basis. It is not based on premiums or any sort of insurance qualifications. If you pass the various legal tests of causation, then you come within it. The only time fault is de-facto required is in one particular part of treatment injury called "failure to treat." This requires showing another course of treatment was available and should have been taken. It is similar, but not the same, as showing negligence. Mere carelessness or inattention is enough, you do not have to make out the complicated, multi-step test of negligence. This scheme is truly unique in the world, although I understand something similar exists in some parts of Australia for road crash (TAC). Some of you will have seen the Whakare/White Island stuff and silly American lawyers screaming on TV about suing the tour company, obviously not realising they could not do so.
This bloke would have no-doubt received treatment injury cover. He will be entitled to, for example, having a prosthetic limb fitted, having a wheelchair or walker or other assistive devices, to having ongoing rehabilitation paid for, transport to appointments or other places to maximise his independence (for example, shopping), to having house or vehicle modifications, having an in-home carer pop in to help with whatever he needs, and cha-ching, compensation for permanent injury. The maximum lump sum is $184,000, but you have to be basically dead to get that. I estimate he would get a goodly number of tens of thousands of dollars. Oh, and no, there are no fees for any of these services, they are all provided free of charge by the scheme. Some outpatient providers can charge a small surcharge, but most do not. Even if there is a surcharge, low income people can get a subsidy to cover that too.
The lack of "being sued" is why it is very common for health practitioners to apologise to patients when things, even minor things, go wrong. There is no liability attached to said apology because any monetary compensation for injury is covered by the Accident Compensation Act. Even if the injury falls outside the various legal tests for coverage (not uncommon for treatment injuries; the test is multi-layered and recently made more complex by a Court of Appeal decision in Accident Compensation Corporation v Ng & ors), the patient and their family are still prohibited from suing. The only exception to the bar on suit is for what is called exemplary damages (punitive damages). These are very hard to get and the Supreme Court in Couch v Attorney-General (No 2) set an extremely high test, only a slight departure downward from deliberate action that the person knew was wrong.
It would also surprise me greatly if an apology amounts to an admission of a duty of care or mistake. In the standard tests of negligence, these are objectively assessed and particularly relating to the breach of duty of care, with reference to accepted common standards. Just because someone subjectively feels due to apologise, I would think is irrelevant. I would be greatly surprised if such was the case, but I am happy to be shown some on point precedent on the matter.
So, for all its problems, I would much rather have a statutory, no-fault scheme rather than rely on having to prove tortious negligence. It also means the legal profession does not flood the consciousness of the general population with sleazy billboards, TV ads, signs on bus benches or church bullitens and the like trolling for injured clients in the hopes of hitting the big one. There are a small number who do take on the terribly interesting medicolegal disputes that the scheme generates and it sure is terribly interesting work.
www.rnz.co.nz
