Victims of medical negligence are missing out on fair compensation because of unjust thresholds and caps imposed by government, according to research at RMIT.
RMIT PhD researcher Tina Popa believes there is an urgent need for medical negligence law reform.
Popa’s research in the Graduate School of Business and Law examines the challenges faced by people pursuing compensation for medical negligence claims.
As the winner of RMIT’s Three Minute Thesis competition and recipient of the People’s Choice Award, she recently represented the University at the Asia-Pacific Three Minute Thesis Final.
The annual competition challenges PhD candidates to sum up their thesis in a three-minute presentation using just one PowerPoint slide.
Popa's presentation was titled Medical Negligence: Legal Challenges:
Let me tell you a story about a situation that may affect us all.
“Maree Whitaker, at the age of nine, lost sight in her right eye.
“As an adult she went to an eye specialist, hoping to regain some sight in her right eye.
“Mrs Whitaker was concerned about anything going wrong with her good left eye, but was re-assured she had nothing to worry about.
She trusted her doctor and went ahead with the operation. The result? Mrs Whitaker went blind in both eyes.
“In 1992 when this case was decided by the High Court, Mrs Whitaker received $800,000 in compensation.
“Let’s leap forward 10 years to 2002 when the Victorian Government introduced injury thresholds and caps on payments, severely restricting the ability of people to recover compensation.
“Let’s leap forward again to 2016. That’s 14 years of thousands of men and women being restricted access to compensation.
“Now quickly cover both of your eyes – if Mrs Whitaker’s case was heard today, this would be her reality for the rest of her life, with limited compensation.
My research is exploring the consequences the change in the law has had on victims of medical negligence.
“The Victorian Government realised this by making changes in 2015, yet the changes do not go far enough.
“I have set out to test this by interviewing three judges and over 20 senior tort lawyers in Victoria about the Wrongs Act.
“I have analysed the data using grounded theory and corrective justice theory.
“The participants have validated my concerns and stated the injury thresholds and causation principles are too strict, while caps on compensation are too low.
“They have reinforced the challenges facing people like Mrs Whitaker, which leads me to conclude that we do need urgent law reform.
“This is why the impact of my research is so important. My research can assist all Australian states and the Federal government to implement appropriate thresholds.
We can never undo the wrong. All we can do is provide compensation that is just, fair and equitable.
“Let me remind you that there will be other Mrs Whitakers. They could be your mother. Your father. Your child. They could even be you.
“If such a tragedy happened, would you want the law to deliver a just outcome?”
Story: Louise Handran