It has been reported that the number of claims brought against doctors and medical institutions in the last decade has increased by 30%, and the overall sums paid in compensation within the framework of legal proceedings have more than doubled.
During that time, the average sum paid in compensation in a single medical negligence claim has almost tripled.
The reasons for this increase include:
- Increased life expectancy.
- The number of services and medications included in the ‘public healthcare basket’ is growing every year.
- Higher quality of medical care leading to higher expectations.
- Increased public awareness.
- Courts developing case law, new causes of action and new heads of damages.
- A growing number of medical malpractice lawyers.
The healthcare system is composed of state-owned and non-state-owned organizations on one side, and on the other side – a network of privately owned hospitals, institutes and clinics – all of which are intertwined with the public system. This causes difficulties in claims involving multiple defendants.
The state is its own insurer, which means that all treatments carried out within state institutions are covered by the state (through the internal fund for governmental insurance).
The state does not however, cover the treatments of state-employed doctors, carried out in their private clinics. For such activity, the individual physician must purchase insurance privately.
The combination between public and private institutions, doctors partially working in both the public and private sectors and the ‘basket’ of services being performed both publicly and privately, create a complex situation as far as coverage is concerned.
In Latin America there have been several legislative changes that have impacted the amounts awarded to claimants such as:
- The amendment to the Political Constitution of the United Mexican States in 2011 as Mexico has formally recognised the principle of “full reparation”.
- The revised version of the Bill (identified as “Proyecto de Ley 010 de 2020”) that sets the foundations for the forthcoming reform of Colombia’s social security healthcare system.
- The establishment of entities such as SUSALUD (Superintendence of National Health) in Peru that provide access to relevant information to patients (health rights, available mechanisms to file a claim, prohibited activities to hospitals, among others) and allows insurers or healthcare service users to file their claims against private hospitals and doctors.
These changes in the region are indicative of a shift towards an increase in medical malpractice claims being brought in many Latin American countries, which is currently most evident in a few of the region’s countries (for example, Mexico and Brazil). The COVID-19 pandemic may result in the further increase of medical malpractice claims in years to come. We anticipate that contributing factors are likely to be the limitations on medical services (medical care exhausted personnel and temporary medical centres), less use of preventive medicine, potential consequences of low/limited availability of vaccines, priority of vaccination campaigns and increased use of telehealth.
The judicial process for medical malpractice claims differs in each country, with claims typically taking over four years to be resolved. Indemnity amounts for medical malpractice claims vary in each country, in accordance with the types of damages recognised by each legislation. Other aspects such as burden of proof, joint liability of medical centres and practitioners, a mediation procedure carried out prior to court proceedings, among others, also differ in the region.
The laws governing medical malpractice claims are as varied as the jurisdictions. For instance, the US Virgin Island (USVI) has a per incident cap of US$250,000 on all medical malpractice claims and routes all claims through a medical malpractice administrative body before reaching the courts.
In the Commonwealth Caribbean jurisdictions of Barbados and Jamaica there is no such cap on damages and there has been a noted increase in the litigiousness in both jurisdictions in recent decades. Claimants in these countries can bring a lawsuit in court without going through an administrative body. It can however, take the courts several years to resolve these claims, sometimes taking up to six years in Jamaica (by comparison, averaging three to four years in USVI courts). However, alternative dispute resolution may be available and can greatly reduce the time for resolution of a claim.
As in many jurisdictions, the COVID-19 pandemic has led to a backlog of cases in Caribbean courts.
Spain has a very strong decentralised public health system governed by public law and financed by taxes, as well as a private healthcare sector.
Medical malpractice claims arising in the public health system are handled by the Administrative courts, with a limitation period of one year commencing once the injuries sustained have healed or are deemed to be permanent. Insurers are brought in to the proceedings as a potentially directly liable party. Expert reports are central to court proceedings, with the judge assessing the evidence to determine liability and quantum.
For medical malpractice claims brought in connection with healthcare delivered in the private sector, the claimant has a direct action against civil liability insurers. Mediation is possible, however it is not very common. Conciliations, however, often take place within the court proceedings process. Civil courts deal with these claims and healthcare insurers can also be called in civil proceedings for any liability arising in connection with the treatment/services provided by the medical practitioner and/or hospital.
Criminal courts in Spain also deal with medical malpractice claims in certain cases, such as those involving allegations of gross negligence. Insurers are also brought in to such proceedings, with the civil liability claim and criminal case dealt with together.
Punitive interest is an important consideration in medical malpractice claims in Spain, as it can substantially increase quantum in those claims that are decided in court.
In Victoria there are no pre-action protocols governing the conduct of medical malpractice claims prior to the issue of proceedings. Depending on the complexity and level of damages claimed, claims are either issued in the County Court or Supreme Court, the latter being the highest court in Victoria.
The limitations period is three years from the date the cause of action is discoverable or six years in relation to infants or a person with a disability. There is also a long-stop period of 12 years from the date of the alleged negligence. However, case law in Victoria demonstrates that the court is minded to extend the limitation period in certain circumstances. A recent example being a case in 2017 brought by a plaintiff where there was a 16 year delay in issuing proceedings, the Court of Appeal finding in his favour and extending the time period.
Parties to litigation in Victoria are bound by the Civil Procedure Act 2010 and must file certificates with the court attesting to compliance with the Act. The obligations under the Act include to act honestly, to only make claims with a proper basis, to narrow the issues in dispute, to minimise delay and to ensure costs are reasonable and proportionate.
The timeframe between the issuing of proceedings and a trial date in medical malpractice claims in Victoria is generally between 12 to 15 months, with directions hearings called in the event of delays occurring. In Victoria, mediation is compulsory and court-ordered. The settlement rate for mediation in Victoria is very high, with only approximately 1% of matters proceeding to trial.
Plaintiffs can and do go through the Medical Board, Health Complaints Commissioner and the Coroners Court before the time limit expires for bringing a civil claim. Expert reports and views as to the medical practitioner’s conduct may then be used to assess the merit of a civil claim.
Looking at the future legal landscape for medical malpractice claims in Victoria, data in the higher courts has demonstrated that awards of damages have remained stable in recent years. High settlement rates at mediation are expected to continue. In the last two to three years we have seen a significant increase in the number of expedited claims (delay in diagnosis of metastatic cancer) and we anticipate that these may increase further as a result of the COVID-19 pandemic.
New South Wales
In New South Wales (NSW), the overwhelming majority of medical malpractice cases settle before trial and are very actively managed by the courts.
As is the case in Victoria, there are no pre-action protocols and most medical malpractice claims, once litigated, are dealt with in the District Court and Supreme Court of NSW. Similar to Victoria, limitation periods are three years after discoverability or 12 years from the act/omission (long stop). The question of discoverability is a much debated issue in NSW.
Mediations and informal settlement conferences are often ordered and are all but compulsory in NSW. The courts are becoming increasingly prepared to order costs against a party who does not attend a mediation in good faith. There have also been recent cases where successful parties have not received costs because they did not participate in a court ordered mediation.
n matters where damages are no more than A$100,000, a costs cap applies limiting the costs a plaintiff can recover to either 20% of the amount recovered or A$10,000, whichever is greater (this includes lawyers and barristers fees) plus disbursements (such as photocopying). This means costs can be capped at for example A$20,000 for a A$100,000 claim.
We have not yet seen new areas of claim in relation to COVID-19 but we anticipate these may emerge in the future. We anticipate potentially a reduction in claims arising from elective surgery as those procedures have reduced due to the pandemic. We anticipate that the particularly challenging circumstances of the pandemic will be factored into the standard to which doctors are likely to be held to during these difficult times. We have however seen an increase in disciplinary actions during the pandemic including claims concerning telehealth.
Claims for damages for medical negligence (medical malpractice) in Western Australia (WA) are commenced in the District Court of WA, which is the intermediate court, and a court of first instance. It has exclusive and unlimited jurisdiction in ‘personal actions’ (claims for damages in respect of the death or personal injury to a person). If the decision of the primary court is appealed, it is heard by the Court of Appeal of the Supreme Court of WA.
As in Victoria and New South Wales, there are no mandatory steps or pre-action protocols to commencing an action for damages for medical negligence but claims are subject to case management and prescribed timetables from when the action is commenced.
The case management regime is as set out in the District Court Rules 2005 (WA). Usually, an action will progress through three stages of active case management one of which includes compulsory participation in settlement negotiations at a ‘pre-trial conference’, conducted on a without prejudice basis to attempt to facilitate settlement before trial hearing. Parties to litigation in the District Court of WA are not limited to one pre-trial conference and can, by consent or on application, list a matter for a further pre-trial conference or a mediation conference in lieu of a pre-trial conference (which is not common).
As in Victoria and New South Wales, claims for damages for medical negligence are subject to maximum statutory time limits to commence an action. A plaintiff has three years to commence legal proceedings, which time starts to run from the earlier of when the person became aware they sustained personal injury or the first symptom or clinical sign occurred. If it is a claim which relates to personal injury sustained during or as a result of child birth, a plaintiff has up to six years. These are the usual statutory limitations period which can be extended by application. Other time limits apply depending on the age of the plaintiff at the time the cause of action accrues or if the person was under a disability: see the Limitation Act 2005 (WA).
Liability is determined by application of the ‘general principles’ in Part 1A of the Civil Liability Act 2002 (WA) (CLA) and common law principles. The quantum assessment of damages is governed by Part 2 of the CLA and common law principles.