July 25, 2020

Medical Defence Organisations have for a long time promoted a culture of denial among doctors called to account in the courts. This reached a new low earlier this year when the UMP placed a series of medical magazine ads featuring Dr Black, a Defendant in the Lipovac case.

The advertisements portrayed Dr Black as having been vilified by the courts even though he had adopted ‘standard practice’.

They carried a healthy dose of fear-mongering calculated to have doctors increase their policies to at least the $10 million which was said to be the ‘extraordinary figure’ which the court had attributed to Dr Black’s negligence. They also featured the doctor’s endorsement of the insurer as ‘scrupulously fair’ and ‘understanding of (his) feelings’.

The desired outcome was to have doctors darkly despising consumer lawyers and the legal system and at the same time lauding the white knight insurer while writing their generous premium cheques.

The advertisements make transparent the motive and purpose of the MDO anti justice campaign. They also illustrate how individual doctors are being exploited for the purpose of sustaining it and are being enticed to shelter among the familiar comfort of denial and anger rather than confront the intolerable reality of the consequences of bad doctoring.

For them, the intolerable truth is that doctors are accountable for their actions and that the arbiters of proper standards of care are the common law courts, not medical tribunals conducted by their peers.

It is far more comfortable, rather than face the truth, to lash out against the legal profession. This is acted out in many ways. There is the resentment that it is a Judge (seen by doctors as members or former members of the legal profession) who is required to determine fault. Retaliation is an almost weekly theme in journal editorials and even newspaper columns where the distortions have found favour among journalists who also resent accountability and the lawyers who deliver it. I have even seen in medical journals, evangelical pieces one of which likened doctors to God and lawyers to the devil. The weekly lawyer joke column in a fortnightly medical magazine is a seemingly benign but profoundly vicious feature of this behaviour.

The practice and promotion of such resentment is dangerous, not to lawyers but to doctors themselves in that it reinforces the unhealthy consequences of their denial.

Then there are the countless features of ‘bargaining’, the unhealthy refusal to accept the current placement of the goalposts. The clearest example of this is the promotion of risk management and better medical practice but only if the rules are changed so doctors don’t have to face their terror of accountability. The statement in a recent UMP journal, by its chairman: There is an urgent need for risk management to reduce the incidence of negligence and for tort law reform to make compensation more manageable, exemplifies this.

One MDO contracted a law school professor as a ‘tort reform research fellow’ to plot a number of specific strategies of confabulation to dilute the effectiveness of our justice system to deal with bad medical practice. American insurance executives have been trotted out as virtuous experts to confer legitimacy upon these distortions. The specific proposals include limitations on expert evidence, caps on damages, structured settlements and a bureaucratic compensation system.

The phrase tort reform is itself the ultimate indicator of the perversity of their bargaining strategy. This tag already belongs to campaigns conducted over many years by organisations like ours, fighting to reclaim the rights stolen by business and government from workers and road users. To label a campaign for the elimination of individuals’ rights, reform is a stunning perversion surely even to these proponents.

Professionals, including doctors, have eschewed other opportunities for service to their patients or clients. In so doing they are naturally distressed if they are confronted with a challenge relating to their professional judgment – especially if they are successfully sued. This is, however, a loss which must be dealt with and ultimately accepted.

Given the extent of energy being invested by the medical insurers and professional associations in fostering denial, anger and bargaining and their exploitation of fear, the prospects of acceptance by doctors that they should be accountable for their actions according to the ordinary laws of the land is distant.

One of the great tragedies of the medical profession’s position is the way in which it leaves the victim, the doctor’s own patient. Surely the delivery of fair compensation by an impartial legal system to casualties of negligent or reckless treatment is desirable. Doctors, by the deceptions of their insurers and associations, have become numb to this. The twist upon twist that they have constructed upon the truth leaves their patient – the victim – insignificant in their denial process.

Lawyers are here to serve the law and through it, the people. One of the most important features of our justice system is that it is blind. There is no scope for collusion or distortion in favour of any person or group, however powerful. The medical insurance industry, infuriated by its refusal of special accommodation, will continue the attacks designed to weaken the delivery of justice, regardless of the casualties. It, therefore, becomes our duty to defend our fundamental institutions against the sickness raged against them.

I have pleasure in enclosing with this edition of Plaintiff your Certificate of Membership. It is fitting at this auspicious juncture to our history that for the first time, membership certificates have been provided. The certificate is a small reminder of the powerful bonds we share and how important this collective endeavour is to us all.

I wish all members and their families a happy Christmas and satisfying, constructive and safe year in 1999.

Peter Carter, President