Medical negligence and mental harm: practitioner perspectives on challenges in litigation and mediation

Popa, T 2018, Medical negligence and mental harm: practitioner perspectives on challenges in litigation and mediation, Doctor of Philosophy (PhD), Graduate School of Business and Law, RMIT University.

Document type: Thesis
Collection: Theses

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Title Medical negligence and mental harm: practitioner perspectives on challenges in litigation and mediation
Author(s) Popa, T
Year 2018
Abstract In early 2000, Australia experienced a medical insurance ‘crisis’ due to a surge in medical negligence litigation and many publicised instances of hefty compensation payouts. Sustained critique of the compensation system prompted state and federal governments to commission an enquiry, known as the ‘Ipp Report’. Australian states reacted to the crisis by enacting legislative amendments in their respective civil liability legislation which are referred to as the ‘Ipp Reforms’. In Victoria reforms were made to the Wrongs Act 1958 (Vic) (‘Wrongs Act’), limiting entitlement to compensation in negligence disputes, introducing permanent injury thresholds, imposing caps on damages and implementing a statutory test of causation. The impact of the Ipp Reforms was drastic. Prominent Australian academics questioned whether the rights of plaintiffs with meritorious negligence claims were unfairly curtailed or denied altogether. For the purposes of this research, these are considered as the first tranche of medical negligence reforms under review.

A decade later, public debate about the compensation system led to the commissioning of a 2014 report by the Victorian Competition and Efficiency Commission. The Victorian government adopted many of the recommendations in the report through the 2015 amendments to the Wrongs Act. This second tranche of legislative amendments attempted to achieve a better balance between the need for affordable insurance premiums and the need to compensate the meritorious claims of individuals who have suffered loss or damage. This research demonstrates that medical negligence legal practitioners and judges perceive that current medical negligence injury thresholds are too high, and that compensation caps continue to be set too low, so that the current systems fails to meet the financial needs of victims.

The aim of this doctoral research was to gather reflections from senior tort lawyers, barristers and sitting judges about continuing challenges in both litigation and mediation of medical negligence and mental harm claims. Part One of this thesis explores the background of the initial insurance crisis, resultant legislative changes, the 2015 remedial amendments and the perceived effect of law reform on disputants’ rights. Part Two of this thesis explores how mediation operates in the shadow of the law, and particularly examines lawyers and parties’ emotional and non-legal needs in the mediation of medical negligence claims. The research seeks to establish the effects that the 2002-2003 law reforms have exerted on the litigation and mediation of meritorious medical negligence claims from the perspective of practising medical negligence lawyers, and sitting judges with medical negligence experience. The research is grounded in interpretivist epistemology, and uses a doctrinal and qualitative methodological design. Research data was gathered through semi-structured interviews with 24 legal practitioners comprising senior tort lawyers, barristers and Victorian judges with medical negligence experience. The researcher used grounded theory as the theoretical framework to analyse the data.

Analysis of the data through the lens of corrective justice theory shows the research participants perceived that injury thresholds, caps on damages and the statutory principle of causation continue to present high hurdles in both progressing medical negligence and mental harm claims, and obtaining fair compensation. This finding supports the contention that the 2015 amendments to the Wrongs Act are inadequate to remedy the adverse effects of the 2002-2003 Ipp Reforms, and thus indicates that further reform is required to ensure the law achieves a more reasonable balance between the competing needs of claimants and insurers.

The findings indicate that consideration of emotion is an important but often neglected stage of medical negligence mediation. There was general acknowledgement from research participants that they neglected to exploit the unique opportunity that mediation offers individuals to express emotion in a way that assists emotional closure. The research participants endorsed the value of mediation, perceiving their role as advising on the law and settlement options. Some participants identified their role as a ‘translator’ of the legal system during negotiation in mediation, attempting to promote understanding of realistic parameters of settlement. As repeat players, the research participants demonstrated a strong tendency to shield their clients from the legal system, with the resultant effect of controlling and dominating the mediation process. Practitioner participants discouraged their clients from speaking in mediation and largely acted as spokesperson, although some clients expressed their wish to speak. These insights and perceptions about the culture in this area of legal practice prompt the question whether, in the area of medical negligence, it is advisable for lawyers to allow their clients the prospect of greater engagement in the legal process to facilitate emotional closure from the experience.

This research thesis breaks new ground as the first study in Victoria exploring the efficacy of the Victorian medical negligence compensation process, from the perspective of the legal practitioner. This research significantly contributes to legal theory and also contributes to practice by making recommendations for law reform based on the perceptions gathered on contemporary challenges in the litigation and mediation of medical negligence and mental harm claims.
Degree Doctor of Philosophy (PhD)
Institution RMIT University
School, Department or Centre Graduate School of Business and Law
Subjects Tort Law
Keyword(s) Tort Law
Medical Negligence
Grounded Theory
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Created: Mon, 30 Apr 2018, 09:02:09 EST by Denise Paciocco
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