Health Services Management - Essay Example

Tort Law Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Instructor Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Date A tort is said to be a civil wrong for which an innocent party is entitled to claim damages. Tort is a word which is derived from French and it means wrong. In Australia, a tot is where an individual suffers wrong or injury and where a court can assist the plaintiff to obtain compensation1. In 2002, the commonwealth government introduces reforms to ensure a viable and a continuous medical indemnity insurance market which included quite vast measures including premium subsidies for doctors in high risk categories. In the same case, the government assists medical indemnity providers to help remove the impact of high cost claims as well as ensuring that the industry is regulated and supervised by Australian Prudential Regulation Authority (APRA)2 Over the last couple of years, there has been the implementation of the recommendations put forward by the Ipp Committee, which has resulted to quite a number of legislative activities at the state and territory government level correlated to the negligence law covering liability and damages. This has all been aimed at reducing the scope of the potential liability or in other words, limiting the liability of medical practitioners providing assistance to people risk of injury or even those who need emergency medical assistance and reducing the damages awarded so as to ensure that underwriters give affordable covers3. However, these recommendations favored a national and uniform legislative response to the perceived insurance liability crisis and the ever increasing award of damages within the courts. Much criticism arouses from the media and the community on issues related to rising costs of insurance premiums and large damages for personal injury. However, despite these controversies, states and territories opted to individually legislate in the area of tort reform but it is worth noting that they are all conforming to the Ipp Reform recommendations. The recommendations advocated for fall into three categories: establishing liability, damages and procedural reforms. As for the issue of establishing liability, a person owes another person a duty of care and this is if the first person have foreseen that if care is n not apprehended then the other person is exposed to physical suffering, injury, death or even economic loss4. In Australia, negligence falls under two components; foreseen-ability of risk or harm and negligence calculus. It is clear that, a person is not liable for failing to take precautions against an unforeseeable risk. When foresee-ability is established, negligence calculus assist in deciding what precautions a reasonable person would have taken to avoid harm that occurred and what the defendant would have done to avert the harm5. The reforms however indicated that, foresee-ability is a necessary but not sufficient condition for finding of negligence. In simple terms, a person is not liable just because the risk was foreseeable. In tort law, a person is liable for damages for failure to take care to prevent injury or even death only if the negligent conduct on his part caused the harm and unless the same harm was not too remote from the negligent conduct. In this matter the court investigates on whether the negligent conduct contributed to the occurrence of the harm or whether the harm would have occurred even without the conduct6. However, this law has some difficulties when it comes to medical practices. For instance, it is hard for the court to determine what the plaintiff would have done if the defendant had not been negligent. This for example is exonerated when a doctor failed to give appropriate warning before an operation, the big issue is what the patient would have continued if the doctor gave the warning. This can result to biasness which may be detrimental to the health care practitioner for it is difficult to determine the state of mind of the plaintiff before the harm occurred. Medical practitioners should not be charged with negligence if the treatment they provided was in accordance with an opinion widely acknowledged by a number of respected practitioners in the field as well speculated in the Bolam principle. It should be made clear that, a healthcare practitioner should not get a liability in negligence arising from the provision of their services7, if it is established that, they act in a manner that when this service was being administered, was unanimously accepted in Australia as competent professional practice. Peer professional opinion does not have to be universally accepted to be considered widely accepted8. The tort law dictates that, medical practitioners are subject to a duty to give viable information to patients to enable them make informed decision on whether to undergo treatment. It is clear that patients must be informed about any risk that may be associated with the treatment they are undergoing. This tethers doctors and nurses on an issue which can make them liable to negligence. However, when it comes to emergencies medical practitioner should be exempted to act promptly to avoid serious risk of life or health of the victim. It is worth noting that, in regard to the health system at clinical and administrative levels, tort law tends to incapacitate the operations in a medical practice setting. This is due to the fact that, the law of negligence favors generosity to the plaintiff at the expense of justice to the defendant in many cases. This in the long run deters those who provide services to the public from taking risks which might be perfectly reasonable to take. it is also clear that, some judgments which have serious injuries are inclined to favoring the plaintiff so as they can be compensated. Tort law has adverse regulatory impacts even when it has not been effective in deterring accidents. This being the case, under the current system of tort liability, many healthcare professionals may be forced to stop offering particular health care services due to the rules and regulations governing the same9. Additionally, it may result to a more of defensive medicine. There are also adverse issues associated with tort of negligence where the probability of a harm occurrence is low, but the harm is serious. Additionally, where the cost of avoidance of harm is very high, courts usually find that the defendant has not been neglected in deciding not to take the precautionary action. For example the case on Romeo v Conservation Commission of the Northern Territory. The plaintiff fell from a cliff after he was drunk from a party and suffered serious injuries in circumstances where the occurrence of the injury was low. It was found that, the defendant was not in breach of duty for the precautions to avoid this injury were very expensive, fencing the whole cliff line. Damages are loss of non economic aspects including suffering, pain, expectation of life and amenities. Loss of amenities is the inability of the injured person to enjoy life as they used to before the injury10. Loss of life expectations is the loss of happiness resulting to a reduction of life expectancy of the injured person. Even when this is the case, the costs which are created by the tort law are difficult quantify. In other words, determining the costs require an analysis of victims who do not file claims. There is enough evidence which depict that, there are people who do not file claims and also for those who suffer injuries which are connected to the adverse events in healthcare and of the magnitude of those harms. Doctors and medical practitioners tailor their practices so as to avoid cost, disruptions and discomfort of being sued has been a matter that has determined the quality of the medical services being offered. These reforms have adverse effects like the standard of care which is determined by what could reasonably be expected of a person professing the skill and relevant circumstances at the date of the alleged negligence11. Tort law have limited the liability of healthcare providers to patients for non economic loses, harms like pains and suffering. This therefore demands a statutory maximum on the amount that can be recovered for non economic losses. The rise in the levels of premiums has caused many physicians to walk off the job, eliminate risky practices areas and in some instances relocate to less litigious jurisdictions. These reforms ensure that public access affordable healthcare. It is clear that, these kinds of jurisdictions have caused havoc in the medical systems in Australia. For example, it has been reported that, many doctors and surgeons are closing their practice sand cancelling certain procedures that are perceived to by high risks12. This is attributed to the fact that, when the risk is high, the practitioner is prone to jurisdictions if the unexpected happens. In some instances, doing the right thing in some situation may end up being a punishment to bad actors, not actually bad act. This being the case, non economic damages surpasses the compensatory faction to impose a punitive effect. It is also worth noting that, judges do determine damage awards through perusing previous awards and similar issues. This being the case, judges are less prone to render decisions guided by sympathy or emotions and less susceptible to misdirection by counsel in assessing damages. This may be detrimental to the provision of medical services and providing adequate management in a medical facility setting. It is however worth noting that, the Australian tort reforms are aimed at reducing health care provider’s liability and increasing certainty by which insurers assess risk and set rates. This makes health care services available to the public at subsidized price. Additionally when liability is reduced on the part of the medical practitioners, then their practices are favored and in the so doing make their Procedural reforms state that, there is a period limit within which a potential plaintiff can be brought to action in a court. In this case, it is clear that medical practitioner who in this case maybe the defendants are subject to long periods of uncertainty linked to whether a claim was to be brought13. This means that, a claim can be brought against a health care practitioner even after 20 years after the date of an injury sustained. This means that, the practitioner lives with uncertainty and this may be detrimental to the provision of medical services. Additionally, they are less likely to be prepared due to the passage of time and this has the capability of bringing into scene compromise of fair trial of a claim. This being the case, it is even more difficult to verify the accuracy of the information regarding the nature of the loss and the conduct of the defendant. It is worth noting that, settling a claim within the shortest time possible reduces the costs which are linked to the claim and court proceedings while they increase the quality and accuracy of the evidence and information that will clear the evidences p-14resented by the plaintiff and the defendants. This will mean that, the practitioner will not live a life of uncertainty and anxiety as they perform their duties for this can be detrimental to the quality of the service provided. In this cases however, much is still to be desired. For instance, health service providers may get into situations which maybe as a result of patient’s negligence15. For example when a patients fail to comply with the recommended treatment, mostly when it is deemed necessary for the patient’s well being, may be a compromise to the practice of doctors. This in the long run means that, the health facility management should document information and occurrence just in case there will be any claims. Tort law is clear on the deterrence of negligence behavior. This is attributed to the fact that, it encourages practitioners to take appropriate steps to ensure the safety of others who will feel the impact of their actions16. This therefore means that, healthcare practitioners are becoming more aware of their obligations under the law and the payout associated with negligence dictate that they cannot remain ignorant. However, good empirical evidence about the effect of liability rules on the behavior of tort-feasors is wanting. It is therefore worth concluding that, tort law results to fewer damages by avoiding injuries, and an overall saving of the community in terms of lost productivity and the cost of care. Additionally, these systems and the reforms that were enacted in the same result to a decreased administrative and legal costs and compensation based on the loss rather than negligence which is in the favor of medical practitioners who perform risky tasks which can blackmail their practice17. Due to the sensitivity of the medical field, there is a need to have practitioners protected. With this, the medical indemnity insurance covers the medical practitioners against damages claimed for personal injury or even death, as a result of negligence by medical practitioner. Unfortunately premiums for this policy have substantially increased mostly for those who practice obstetrics and neurosurgery. This being the case, many medical practitioners are left with no option that to leave those practices which are deemed to be high risks and thus the quality of the services offered is low. This is attributed to the fact that, when high risk disciplines are vacated, then the public is left with no service provider to assist them when need arises. In the same case, doctors have no issue with compensations where negligence is clear and cases settled before the matter gets to court18. Borrowing from the notion that, taking expert evidence is one of the two main generators of unnecessary costs of litigation; it is also clear that, very few practitioners win when a case goes to court. Even is a doctor is not exonerated of any medical negligence, the stress of years of ongoing pressure has resulted to some doctors who are valued practitioners in their disciplines quitting the practice. Bibliography AM Actuaries, 2005 actuarial assessment of the impact of tort law reforms on medical indemnity premiums (November 2005) (Commercial-in-confidence report to the medical indemnity policy review panel) 34. Australian Competition and Consumer Commission, Public liability and professional indemnity insurance: Fourth monitoring report (January 2005) 43 Bismark M, Paterson R. No‐Fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety. Health Affairs 2006;25:278‐83. Civil Liability Act 2002 (NSW) s16. Carryer, J., & Boyd, M. (2003). The myth of medical liability for nursing practice. Nursing Praxis in New Zealand, 19(3), 4—12. Gooderham, P (2007) ‘Special treatment?’ New Law Journal 694 Horrocks, S., Anderson, E., & Salisbury, C. (2002). Systematic review of whether nurse practitioners working in primary care can provide equivalent care to doctors. British Medical Journal, 324, 819—823. Klutz, D. L. (2004). Tort reform: An issue for nurse practitioners. Journal of the American Academy of Nurse Practitioners, 16(2), 74—79 Kessler DP, McClellan MB. How Liability Law Affects Medical Productivity. Journal of Health Economics 2002;21:931‐55. Morgan, J (2004) ‘Tort insurance and incoherence’ 67(3) Modern Law Review 384 Medical Indemnity Act 2002 (Cth) ss 43–44B; ACHIEVING STABILITY AND PREMIUM AFFORDABILITY, supra note 54, at 3–4. Parker, A (2006) ‘Changing the claims culture’ New Law Journal 702 Slapper, G (2005) ‘Compensation culture’ 46 Student Law Review 28 Tusaie, K. & Dyer, J. (2004). Resilience: A historical review of the construct. Holistic Nursing Practice, 18 (10), 3-10. Yoon, Albert, “Damage Caps and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the South,” American Law and Economics Review, vol. 3, no. 2 (2001), pp. 199-227. . Read More