Tort reform and the medical indemnity ‘crisis’



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UNSW Law Journal Volume 25(3)


TORT REFORM AND THE MEDICAL INDEMNITY ‘CRISIS’


PETER CASHMAN*
For every complex problem there is an answer that is clear, simple, and wrong.1

I INTRODUCTION


A perceived ‘crisis’ in medical indemnity insurance has precipitated a number of legislative changes and other proposals for tort ‘reform’ intended to deal with the ‘problem’.

Many of the legislatively enacted tort ‘deforms’ and other present proposals seek to achieve a relatively simple solution to what is in reality a complex problem. The first wave of reforms, initially enacted in NSW but now being advocated in other jurisdictions, is intended to curtail, abolish or discount damages entitlements. Such solutions are not only unfair, in that they limit or take away the legal rights of innocent victims of medical negligence, they also fail to deal with the real causes of the crisis. The second wave of ‘reforms’, including those emanating from the recent Review of the Law of Negligence Final Report (‘Ipp Report’),2 seek to restrict rights and remedies. Modifications to the substantive law have been proposed which, if enacted, will turn the clock back on changes in the law of negligence which have developed incrementally over many years by careful and cautious appellate courts, including the High Court.



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