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McIlwraith, Janine --- "Editorial: a challenging field" [2015] PrecedentAULA 15; (2015) 127 Precedent 2


By Janine McIlwraith

Anyone who practises in the health and medical law field will tell you that it’s always interesting, seldom predictable, and invariably challenging. This edition of Precedent offers an impressive array of articles covering many different aspects of medical law from many different perspectives.

The inevitable complexity and challenges of running a medical negligence claim are nicely summarised in Peter Darcy-King’s article on what it takes to succeed in such a claim.

The impact of recent case law on the day-to-day practice of medical law is considered by David Hirsch and Tracey Carver in their in-depth analyses of two of the most important cases recently considered by the courts.

Rebecca Tidswell and Ebony Birchall provide thought-provoking insights into the issues of liability regarding homebirth and immigration detention, respectively, while Bill Madden and Tina Cockburn dissect liability in the multidisciplinary team setting.

Enhancing the medical knowledge of lawyers, Stephen Littlefair and Tessa Davis offer clinical perspectives on medical error in the radiological and paediatric settings. Kathy Sant and Nicholas Broadbent outline how to prepare and present expert evidence in the relatively new arena of joint conferences and concurrent evidence.

For most lawyers, costs are the least enjoyable aspect of managing files but an essential component of practice: Phillipa Alexander offers some practical advice on the disclosure of costs estimates.

The vast majority of clients come to us, as plaintiff lawyers in the medical negligence field, expressing the fervent wish that what happened to them should not happen to anyone else. The common law and its unique process of scrutiny remains an integral part of improving patient safety and evolving clinical practice. As difficult as it can be for a medical professional involved in a case, it is essential that our clients’ tragic experiences receive public scrutiny and that associated opportunities for collective learning are not lost.

In the context of patient safety, Marie Bismark’s article on evidence-based regulation of the medical profession is compelling reading. Identifying opportunities to proactively predict and address risk through the analysis of complaints data is an exciting and promising development.

Many clients express a desire for a particular practitioner’s actions to be reviewed and/or for that practitioner to be held to account for their actions (whether those actions constitute negligence or not). Alice O’Connell’s article on alternatives to medical negligence litigation reinforces the important role of disciplinary investigations and proceedings play in the health law matrix, and is a timely reminder of the benefit that those processes can have for individual clients and the broader community.

As plaintiff lawyers, should we somehow be greater advocates for patient safety? After all, our clients seek two fundamental outcomes: compensation for their injuries and improvements in the health service. While we can often achieve compensation for them, it is much harder to assess whether changes in health services follow the litigation or referral to disciplinary bodies. Given that it is not our primary goal, it is also not something we actively pursue. Yet the vast amount of information and analysis produced in the course of investigating a claim could potentially inform health practice on a much larger scale than the individual case to which it relates. Shouldn’t there be a mechanism for putting such information to better use at the completion of proceedings, in terms of improving clinical practice and health services management, and facilitating change where appropriate?

I don’t have the answers. Certainly patient safety mechanisms seem at present to be too heavily reliant on reactive measures, and a more proactive approach to address risks before they eventuate is warranted. This is not to underestimate or criticise the vast efforts that are being made in risk management in the health arena. I wonder, though, whether a more comprehensive and co-ordinated approach to adverse event prevention and management could be more actively and vigorously pursued, and whether plaintiff lawyers are particularly well-qualified to be at the forefront of a movement promoting such change.

Janine McIlwraith is principal lawyer with Slater and Gordon Lawyers, Melbourne. PHONE (03) 9602 6888 EMAIL

The views expressed in this editorial her own.

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