Plus ça change,plus c’est la même chose

Abstract

In 2005, cover for treatment injury replaced medical misadventure in New Zealand’s accident compensation scheme. The mischief was to remove the need for a claimant to prove a health practitioner’s or organization’s negligence to establish cover. The aim was to provide greater fairness for claimants, faster claims handling and a higher acceptance rate. A disturbing aspect of the case law interpreting the treatment injury criteria is that notions of negligence have crept back into the interpretation of these criteria and are becoming entrenched. The original purpose of the reform is in danger of miscarrying, unless these misguided interpretations are corrected by superior appellate courts. This is not simply a matter of being faithful to the intention of the reform but is necessary to maximize provider trust and cooperation in the claims process in the interests of claimants. A way to do this is to incorporate the concept of ‘preventability’ as defined in the Swedish, Danish and Finnish patient insurance schemes. It may prove impossible to eradicate fault altogether from treatment injury, but vigilance is required so that negligence is kept to a minimum. Negligence concepts might continue to play a role in the interpretation of the statutory exclusion from cover of personal injury that is an ‘ordinary consequence’ of treatment. Another is in relation to Accident Compensation Corporation’s (ACC’s) mandatory duty to report a risk of harm to the public. Any enthusiasm on behalf of ACC and the courts to ‘bring back negligence’ is ironically absent from the latter aspect of the scheme.