Medical Misadventure Changes - Questions and Answers

Common questions and answers about changes to ACC's medical misadventure provisions

1. When and why was the review of medical misadventure commissioned?

The review was initiated two years ago because the current provisions relating to medical misadventure were not working well for claimants or health professionals. In particular, there were concerns about the two bases under which ACC can provide cover for adverse medical consequence: medical mishap and medical error. In the case of medical mishap, the adverse consequence has to be rare, occurring in one per cent or less of cases where that treatment is given. This definition can be confusing and arbitrary. Medical error depends on a finding of fault on the part of a practitioner or organisation. This is inconsistent with the rest of the no-fault ACC scheme. It can also be a disincentive for practitioners to co-operate with ACC in resolving a claim when they would have to provide evidence against themselves, leading to delays in processing claims. Furthermore, because ACC has to report medical errors to the relevant statutory bodies, this leads to confusion about ACC's role in the health system.

2. What are the key objectives of the proposed changes?

The changes aim to get rid of the adversarial tendency in some medical misadventure claims and to simplify and shorten the claims process while creating a strong partnership between ACC and the health sector that will promote better and safer delivery of medical services to New Zealanders. They signal a new way of working with the health sector to deal with adverse treatment injuries promptly, learn from them and prevent them happening again.

3. What did the consultation process find out?

The consultation found strong desire for change, with more than 80 percent of respondents supporting introduction of new cover criteria. There were mixed views about ACC information-sharing regarding individual health professionals.

4. What are the key decisions?

· The government has decided to adopt the 'Personal Injury Caused By Treatment' option. This does away with the requirement to find fault as the medical error and mishap provisions will be repealed. · Treatment injury will cover injuries whether they are serious or not. This makes it more consistent with the rest of the scheme. · ACC's reporting requirements will change so that it will only report to relevant statutory bodies where it sees a risk of public harm. Instead of reporting on the competency of practitioners and organisations, the new reporting criteria will be wider. ACC will report if the information it has gathered while processing claims indicates that there is further risk to the public either from a practitioner of organisation, or from a type of treatment, medical facilities, equipment, drugs et cetera.

4. Will all injuries, however caused, be covered under treatment injury criteria?

No. Injuries that are a necessary part of treatment, such as a surgical incision, or injuries that result from the patient's underlying condition, will not be covered. There will also not be cover if the desired results were not achieved.

5. Why are all treatment injuries being covered, rather than just those that are more serious, as at present?

The aim is to simplify the claims process and to reduce distress to potential claimants. Removing the requirement will eliminate the need to make judgements as to whether an injury is serious or not. It is also expected that a lot of minor injuries will continue not to be reported, or will be resolved during the treatment process. The cost of including minor injuries is not expected to be significant. Taking into account the reduced complexity and administration and the minor cost, there may be little to be gained from making the distinction.

6. How can we ensure that health professionals who are negligent get held to account?

Claimants who are concerned that their provider was negligent will still be able to make a complaint to the Health & Disability Commissioner. In designing the new ACC reporting requirements, a balance had to be made between public safety and facilitating the smooth operation of the medical misadventure scheme. Therefore, it was decided not to eliminate reporting requirements entirely. Furthermore, the new provisions make it possible for ACC - when it identifies an adverse, or even a positive, trend in its database - to report this to relevant bodies without identifying individuals involved. ACC has been gathering data on adverse medical incidents since 1992-93 and trends identified in this data can be shared with practitioner groups, DHBs and learning institutions in order to promote improved patient safety and practices. ACC will be happy to pass on "anonymised" data where no individuals would be identified. The new provision will bolster the partnership between ACC and health providers, rather than drive a wedge, as has been the case with medical error.

7. Many people who have already been injured in adverse medical events will only show symptoms after the new law comes into effect. How will they be treated under the new law?

The government is working on transitional provisions that will ensure that these people get fair treatment. The details will be made public in the new bill. Those that have already been considered under existing legislation and declined cover because they did not have an injury cannot be reconsidered under the new legislation unless they can show they now have a personal injury.

8. If the new law works the way it is intended, does this mean there will be no disputes arising from claims to ACC for medical misadventure?

The new law will go a long way to clarifying what has, too often, been an unnecessarily contentious area of ACC. Unfortunately, there will still be areas at the boundaries where it is not always obvious whether the condition is the result of an injury, or is due to a medical condition. In these cases, it may be contentious as to whether ACC can provide cover.

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