Removing the onus to find fault from medical misadventure legislation has cleared a long-standing obstacle to improving patient safety and reducing treatment injuries, says ACC.

Under an amendment to the Injury Prevention, Rehabilitation and Compensation Act which takes effect on 1 July 2005, people who suffer an injury as a result of medical treatment will no longer have to prove that their health professional was at fault or that the injury was “rare and severe” in order to get ACC help.

The change will put health professionals and ACC on the same cooperative footing and make patients’ well-being and the delivery of the safest possible treatment their joint priority. One immediate outcome will be prompter processing of claims, which ACC hopes will be lodged at the time by the health professional who provided the treatment.

ACC’s General Manager Specialist Rehabilitation, Jackie Pivac, said the move away from the punitive system of finding and reporting medical error would strengthen the relationship between ACC and the health sector, and help to build productive partnerships in the interests of patients rather than adversarial relationships.

“The old legislation offered little incentive for health professionals to acknowledge when things did not go according to plan and learn from them,” Ms Pivac said. “It was inherently adversarial. Often someone had to be found at fault before we could accept a claim and proceed with rehabilitation.

“There is no doubt it discouraged cooperation with ACC in resolving a claim because health professionals had to provide evidence against themselves. This reticence led to lengthy delays in processing claims because ACC couldn’t obtain all the necessary information. Another inevitable outcome was that it hindered efforts to gather information about trends and patterns of preventable injuries - information that is vital to improving patient safety and overall care.”

The Act replaces “medical misadventure” with a category called “treatment injury” which includes both serious and minor injuries caused during treatment by a health professional. Things that are a necessary part of treatment - for example, an incision during surgery - or ordinary consequences of treatment - such as hair loss after chemotherapy - are still not covered. It is anticipated that more claims will be accepted, especially some of those that previously did not meet the arbitrary rarity and severity criteria.

The law change affects all registered health practitioners, including chiropractors, clinical dental technicians, dental technicians, dentists, medical laboratory technologists, medical practitioners (doctors, surgeons, anaesthetists etc), medical radiation technologists, midwives, nurses, occupational therapists, optometrists, pharmacists, physiotherapists and podiatrists.

Ms Pivac said the law laid the groundwork for greater collaboration and openness. “When hospital staff, for example, are asked to submit a report on their involvement in the care of a patient who has made an ACC claim, they can do so secure in the knowledge our focus is on the injury, not on whether they were at fault in any way.

“We are also hoping the claims process will be instigated at its source - by the health professional involved in the treatment - rather than down the track by the disgruntled patient, or the patient’s GP, as often used to happen. I think it’s quite reasonable to expect that health professionals will be willing to take the initiative in this new no-fault environment.”

As well as receiving patients’ claims much sooner after an injury, ACC also expects to process claims faster. In the past, medical misadventure claims took on average six months to deal with. Given some of those lodging claims had significant rehabilitation and compensation needs, delays of that length were quite unsatisfactory. ACC is now hopeful of settling straightforward cases within a fortnight and more complicated cases within about two to three months.

Ms Pivac said the previous system wasn’t easy for patients either. “It was a traumatic and time-consuming business and took them into a complex medico-legal field. Extending the ACC scheme’s no-fault principle to the health sector will enable patients to receive rehabilitation and compensation without the stress and delays.”

Two years of consultation with the health sector preceded the legislation’s introduction to Parliament. About 80 per cent of submissions endorsed the thrust of the Bill, with objections focused chiefly on ACC’s reporting requirements which, in the interests of public safety, have not been eliminated entirely.

ACC will no longer routinely report individual cases or competency concerns to the Health and Disability Commissioner or to the registration authority or employer in question. But it will keep a “safety net” in place by reporting any risk of harm to the public. If information collected in the course of processing a claim suggests there is a risk to the public - say, from an organisation, a type of treatment, a practitioner, unsuitable medical facilities and equipment or a particular drug - then it will make a report to the relevant authority.

In addition, information gathered from claims will be used in research efforts to help cut the number of treatment injuries. This information, which will not identify individuals, will be shared with the health sector.

“Once again, the focus is improving patient safety and care,” Ms Pivac said. “ACC has shed its role of playing policeman to medical professionals, a role that was at odds with the no-fault nature of the rest of the ACC scheme.”

One thing that won’t change is patients’ right to make a complaint to the Health and Disability Commissioner if they are unhappy with the standard of care they received from their medical professional. ACC will advise patients of the Commissioner’s role and its advocacy service.

ACC levies in the health sector will not change either. ACC has never levied the sector for the cost of medical misadventure claims and that will not alter, even though the number of claims is expected to rise by between 1,000 and 2,000 a year, mainly because of the inclusion of minor injuries. In the past ACC has received about 3,000 medical misadventure claims a year.

Ms Pivac predicted a lot of minor injuries would be resolved during the treatment process. However, many were likely to be prevented in time as medical professionals modified their practices as a result of receiving more comprehensive injury data from ACC. That data would also be shared with district health boards and teaching institutions to promote safer work practices.