The Right to Sue
ACC takes away our right to sue people in the event of an accident that incapacitates us. This is a direct result of that. Here is a mother, Clare Williams, whose epidural injection for her caesarian section was given in the wrong place (the doctor has admitted this). It has caused her severe back pain (the orthopaedic specialist has confirmed this). But ACC have refused to pay for any treatment, basing their assessment on the idea that the back pain is the result of arthritic processes. And when you are the monopoly insurer and there is no right to sue, there is nowhere else to go.
This is the consequence of our ACC system. It works well for people with minor injuries, poorly for people with severe disabling injuries (compensation is low) and, sometimes, not at all for people like Clare Williams.
In a system that allows legal recourse, Clare could have found a lawyer willing to work for a contingent fee (a fee he or she only gets if they win). No lawyer would work for that in an appeal to ACC that would not produce a damages award. Similarly, taking ACC to court would not attract public money and would have to be funded privately. Effectively, justice has been denied Clare Williams by our current system.
Clare is not a rare case. There are dozens of people who have been denied compensation because their claim with ACC has been rejected. None of these people have any other recourse unless they are wealthy. In addition, there are many thousands of people who have received highly inadequate amounts of compensation for their disabilities and have absolutely no recourse at all, regardless of their wealth.
Frankly, the only way to avoid this kind of thing is to scrap “no fault” compensation and return the right to sue. There is no reason why ACC should not devolve into a standard accident insurance. A universal basic insurance could be offered by the government to ensure low-income people are adequately covered. A restriction on the level of legal fees that can be garnered through contingent fees should prevent the most egregious excesses of the American tort law system.
People like Clare Williams would then have their rights restored to them.
Additional:
You can read all about Madeleine’s (from MandM) problems with ACC following her car accident here. She illustrates well the second category of people for whom the right to sue is essential – those who have been inadequately compensated by ACC . This is a much larger group that the one Clare Williams belongs to (those rejected by ACC)
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Apr 7 09 1:42 pm
Hear hear!
I have blogged extensively on my own experiences and thoughts of this following my serious injuries sustained in a car accident last year.
Yes, sorry, Madeleine, I should have mentioned you as a prime example of the second category – inadequate compensation.
Apr 7 09 4:36 pm
Feel free to. I have documented quite a bit of my experience and frustration relating to the right to sue being removed on MandM – it is all labelled under “car accident.”
Apr 7 09 6:25 pm
The anaesthetist said he put the epidural in the wrong place. So I guess that he had a dural tap, and if the patient experienced pain, just touching a nerve in the cauda equina will cause severe pain. It would be very difficult to dmage one of these mobile nerves with a needle – and even if that was the case, there would be regeneration in about 4 months. Going by the Ortho comment there is no proof of direct damage to the cord (insertion of epidural above L2, and MRI would have shown a syrinx and the comment would have been more damning), only backache and possibly some peripheral neurology. BTW location of the correct interspace is notoriously inaccurate and even 2 spaces out in experienced hands.
Several papers have looked at backache and noted that there is no increase in long term backache in women who have had epidurals as opposed to those who have not – in both section or normal delivery groups. For those who have had sections it is 17%.
Post delivery neurology occurs – it is called an obstetric palsey and seems to have been forgotten about in the age of pain free childbirth. Unless nerve conduction studies are done one cannot blame an epidural for a peripheral neurology.
ACC has been handing out compensation for ‘epidural’ injuries like wildfire – for anyone who has had an epidural – without anything to confirm that this is the case. Most of the recipients only have an obstetric palsey or pregnancy related backache.
I cannot see how a practitioner could be held responsible when (on available evidence) there is nothing to back up her claim.
Apr 7 09 11:15 pm
Lets grant your position for the sake of argument. MacDoctor’s assessment that the right to sue stands even if it doesn’t apply in this case. Critigue my situation, documented on my blog, and see if you can find no case to answer.
Apr 8 09 12:44 am
MAWM: I cannot see how a practitioner could be held responsible when (on available evidence) there is nothing to back up her claim.
It is clear that the anaesthetist made an error. In tort law, it is my understanding that it is not necessary to prove that this error was due to gross negligence or lack of skill, merely that it is not the normal standard of practice for an anaesthetist. Madeleine could correct me if I am wrong.
Regardless of the merits of this case, however, the fact remains that removing the right to sue has left this lady NO options to explore. She cannot sue her insurer, the hospital, the DHB or the doctor. That is simply not right.
Apr 8 09 2:38 am
I don’t think that it is as clear cut as that.
If say 1% of epidural insertions result in a dural tap, that you inform the patient of this beforehand, document it and the patient gives you permission to proceed (informed consent); then how can one claim compensation from that doctor, he was performing to an expected level of skill. If he did not follow that course, then he deserves to be sued for being an idiot.
The other issue is what is error? We know that 1% of epidurals have a dural tap. So it’s is bad luck that it happened to you. So if the complication rate is 20%, or 30%, even 40%, you would be expecting it to happen. It is just the risk of that particular treatment. Now if you relate it to a drug – say an allergic reaction – if you suffer that complication is it medical error? No it is just a risk of that treatment.
However if you are totally incompetent and have weird or unusual ‘complications’ due to kak-handedness (as that gynaecologist who had botched his steralisations) then one can claim gross negligence or lack of skill and that person should have to pay up.
Apr 8 09 9:24 am
Can’t sue. Don’t even get the name of the incompetent party. This is an area where NZ doctors have it very good compared to their overseas colleagues. Who is this mysterious Dr B?
I like the case in the Herald today. The lady had to hire her own lawyer to conduct an independent investigation because the Health Disability Guy wasn’t doing anything. For God’s sake, at least name the guilty party so we can choose to steer well clear of him/her.
Apr 8 09 4:57 pm
The basic principle of Tort law is the duty of care. There is special duty and level of reliance one should be able to expect from anyone holding themselves out as an expert or professional. Based on these I would think you were correct Jim.
As for how the specifics work in medical misadventure, especially with the ever-changing ACC law I couldn’t be certain. It is an area I wish to investigate given my own surgery was delayed unnecessarily to my detriment and now it appears it was not the textbook procedure I was told it was as one of my new neck discs is not sitting where it should so I plan to get clued up on it though I suspect that the cost of pursuing such cases, gathering second opinions, additional MRI’s etc would outweigh any compensation one might get if one succeeded. (Another reason to retain the right to sue)