No fault compensation: The New Zealand experience

Abstract

In the 1960s medical malpractice claims arose in common law in either negligence or contract. In 1967 “TheWoodhouse Solution” sought to “rehabilitate the injured” and “compensate them for their losses.” The first statute to provide for personal injury by accident, which included medical misadventure, was the Accident Compensation Act 1972. In 1974 the original Accident Compensation Commission (ACC) was of the view that only catastrophic and disastrous responses to surgical or medical therapy should be included but, with time, notions of medical error and medical mishap emerged. In the 1980s the Appeal Authority and High Court modified the concepts and in 1989 the Court of Appeal confirmed that medical negligence or error constituted medical misadventure. Three statutes followed, containing a definition of medical misadventure, namely: the Accident Rehabilitation and Compensation Insurance Act 1992; the Accident Insurance Act 1998 and the Accident Compensation Act 2001. These statutes defined “registered health professionals,” including a range of people, such as doctors, nurses, chiropractors, dental technicians, occupational therapists, pharmacists and physiotherapists. From 1 April 2002 the definition of “medical error” was extended and contrasted to the Code of Health and Disability Services Consumer’s rights. This chapter reviews claims declined and the reasons for this and offers statistics relevant to the application of the “no-fault” system. It examines medical misadventure and the introduction of the concept of “Treatment Injury.” Fault is not totally divorced from any inquiry as failure to: diagnose; provide treatment; refer; or follow up, still need to be appreciated and appropriately managed by the ACC. The chapter reviews current boundary issues to determine if cover is available, such as causation, whether the outcome related to “necessary or ordinary consequences of treatment” and extraordinary questions, such as whether “pregnancy” is a “personal injury.” The chapter reviews the history and cost of claims and the National Top 10 accepted treatment injuries.