Abstract
Current responses to medical negligence insufficiently consider the broader needs of affected stakeholders. We argue that responses to medical negligence should adopt a restorative justice frame. This article recounts the experience of our daughter’s avoidable suffering and subsequent death in the healthcare system. Our experience as victims of medical negligence, and the broader literature on restorative justice, responsive regulation and health care, suggest that non-adversarial alternatives will better address the needs of victims and encourage a restoration in healthcare relationships.
Keywords
‘You must definitely sue the doctor and the hospital’ was the first thing the surgeon who had just stabilised our daughter said. At least, in the confusion of those moments, it was the first thing we remember him saying. A week earlier, our daughter began to die while in the care of a paediatric intensive care unit because of a botched surgery that we were later advised should never have been conducted. That surgery followed an earlier, but unrelated, incident in the same hospitalisation when our daughter was killed, only to be resuscitated, after the negligent administration of a fatal dose of morphine. During this time, we pleaded for the necessary medical interventions to save her life, but those requests were ignored by several medical staff responsible for her care. Lifesaving surgery was only provided when a whistleblowing nurse intervened and had our daughter airlifted to another hospital. By then, of course, lasting and irreversible damage had been done to her well-being. So began a slow and eventually fatal deterioration of our daughter’s health that was, in part at least, attributable to the negligent surgery and negligent care. Months in hospitals and intensive care units, special education meetings, overwhelming health care bills, the toll of providing 24-hour a day medical care, the transformation of our bedroom into a pseudo-hospital room replete with monitors and machines that beeped and kept her alive, the fear (and hope) regarding our daughter’s mortality are just some of the harms that have gone unaddressed for us to this day.
Despite one of us being a lawyer we never pursued legal proceedings, but the medical professionals were investigated by the hospital. We were interviewed as witnesses. We were never told what had happened, except that ‘steps had been taken’. The rights to privacy of healthcare professionals trumped our daughter’s and our rights as victims. Indeed, we had no rights in the hospital’s investigatory regime. Our role reflected the traditional position of victims in the justice system: tools for investigation, whose participation was corralled and directed by professionals, without concern for our well-being and our needs from the process. Our experience mirrored the observation of Wailling et al that current investigative processes in medical negligence matters can compound harm. 1 The only rights we might have been able to exercise would have been through the financially costly and emotionally daunting process of initiating a lawsuit. Looking up medical negligence 2 lawyers was a traumatising experience, requiring us to revisit all that went wrong and all the pain our daughter endured. We had to try to quantify a damaged and then lost life. How do parents measure the missed opportunities of their children in a format acceptable to the legal system? The prospect of a lawsuit was unpleasant to us, although we strongly desired justice. Justice would come to mean many different things to us in this context: accountability for the negligent doctors’ and nurses’ actions; assistance with ongoing health care costs; and helping to prevent future families from enduring a similar ordeal. In darker moments, justice might have appealed as something more sinister – how could it not when the only justice we were offered was in the fantasies we created as solace for ourselves?
The system that investigates and responds to medical negligence, we would learn, was not about justice. It was not about avoiding repetition of mistakes. It was certainly not about healing. It was not even about punishment. What we would have benefitted from was a process that revealed truth and encouraged dialogue between us, the hospital and the health professionals – a process that would have allowed us to hear, from the medical staff, a frank and honest narration of what had happened. We would have benefitted from a process that allowed us to express our pain and grief and to share how the actions of the healthcare professionals affected us. We wanted acknowledgment of those harms from the responsible parties. We wanted to be part of a process that helped doctors and families in the future to avoid the harms that we had experienced.
Regrettably, such a process was not available. We argue here that it should be, and that there is a need to consider a participatory-driven, restorative approach to justice in the healthcare setting that sits within a responsive regulation paradigm. We argue it is possible to create a more meaningful response than the internal investigations and criminal or civil legal proceedings that are currently (if infrequently) available. In doing so, this article proposes a potential response to medical harms that re-centres the victim.
Medical harms and justice avenues
The average Australian visits their general practitioner 6.8 times a year, resulting in approximately 166 million patient-doctor interactions in a year. 3 There are additional interactions with specialists, surgeons and hospital staff, if a patient is admitted to hospital. The sheer volume of contact in relation to health suggests that mistakes, misjudgments and errors will – and do – inevitably occur. 4 Scott and Crock found 140,000 cases of diagnostic error occur in Australia each year. 5 Of these cases of diagnostic error, 21,000 result in serious harm and 2000 to 4000 result in death of the patient. 6 In Australia, the broader category of medical error – incorrect diagnosis or choice of the wrong medicine – ‘results in as many as 18,000 unnecessary deaths, and more than 50,000 patients becom[ing] disabled each year.’ 7 The Australian and New Zealand Audit of Surgical Mortality states that, from January 2009 through to December 2012, 16,423 deaths occurred in emergency admission, although the Royal Australasian College of Surgeons claims only 100 patients die from avoidable surgical errors per year in Australia. 8 The Australian Institute of Health and Welfare determined that, in 2016, there were around 27,000 potentially avoidable deaths. 9
While there seems to be a popular perception that victims are litigiously minded and quick to bring a civil or criminal case, few cases are actually brought in instances of medical negligence. 10 Some cases are not pursued due to the strength of the patient-doctor relationship, with evidence suggesting that doctors who are forthcoming in admitting error are less likely to be subject to a lawsuit. 11 Another factor contributing to the low ratio of legal cases in relation to the number of errors also is the screening process that lawyers undertake: in a US study conducted by Shepherd it was found that the overwhelming majority of cases brought by prospective clients were rejected by lawyers. 12 This is partially because lawyers in the United States (US) were unwilling to take on cases where damages were less than $250,000, suggesting that a significant access to justice gap exists. 13 In Australia, ‘the costs penalty rule remains, so if a patient sues a doctor and loses he will still pay the doctor’s legal costs’, which may create a disincentive for victims to pursue justice. 14 According to data obtained from the Australian National Claims and Policies Database (NCPD) in 2021, which includes medical indemnity insurance data among a number of other categories, the average size of most claims is $29,000, while a small number of claims are large (less than 2 per cent of claims are finalised for more than $500,000). 15 Australia has undertaken several reforms over the last 20 years to reduce the incidence of litigation around medical negligence. 16 These reforms have been championed as a model for countries like the US to adopt, as a way to regulate financial compensation to victims and halt the ‘medical malpractice crisis’. 17 There is an emerging body of evidence that suggests reforms have positively supported physicians’ well-being, although the impact of reforms on victims’ needs is less positive. 18
The medical profession has been identified as a cultural environment where stigma and blame surround mistakes and errors of judgement. 19 Part of the issue lies in the culture around doctors where society expects doctors not to make mistakes, which ultimately undermines their health and ability to perform clinical work. 20 Ignoring, minimising, or not disclosing errors has been linked to depression, shame and diminished well-being. 21 Given this culture, it is unsurprising that few errors are acknowledged, and physicians are reluctant to apologise to patients. 22 The threat of being sued, along with time constraints and an unwillingness to have a difficult conversation where a physician admits fault, have been identified as reasons that information about mistakes is not shared with impacted patients. 23 This culture leads to negative impacts on a physician's well-being when mistakes are made, 24 which are amplified when a suit is filed against them. 25 In a study by Bradfield et al, 885 Australian doctors who had been named in medical negligence claims were questioned regarding their self-rated health and life satisfaction. 26 Bradfield at al were responding to previous research that found doctors felt they wanted to leave or ‘drop out’ of the profession, their emotions were dismissed, they were not included in the process, and it led to defensive medicine (when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures because of fear of litigation or complaints). 27 Bradfield et al found medical litigation does not appear to have the same negative affect on well-being for medical professionals in Australia that it does in other countries, suggesting better support and approaches to errors are effective (although it may also be the result of a more favourable litigation regime for medical professionals in Australia). 28
One policy that has been adopted in Australia, and which may have led to better outcomes for medical staff, is the requirement to implement open disclosure, described as ‘the open discussion of adverse events that result in harm to a patient while receiving health care with the patient, their family and carers’. 29 Yet, Iedema et al argue that patients have unmet needs during the disclosure process due to a lack of dialogue, and a lack of information about the process. 30 As studies on victim needs have shown, a lack of information affects victim satisfaction in responses to their individual case. 31 Further, Holmes et al found that, while open disclosure is a requirement, it is not always occurring. 32 In other words, disclosure processes have potential, but they are still not fully embraced and may not achieve the desired outcomes for victims. This suggests that while disclosures are an important first step, they are not enough.
A victim’s perception of responses
For us, pursuing an adversarial case against a single doctor would not have achieved the justice we desired. Punishing the surgeon for forcing a jejunum-feeding tube against a resistant bend in the small intestine, leading to a perforation, would not change that the post-care physician did not check the tube placement after surgery but recommended starting the feeding pump straightaway. Further, when our daughter’s abdomen began to become red, distended, and the fever set in during the night, the rounding physician did not respond to the nurses’ phone calls or pages. Pursuing the surgeon would not change the lack of medical attention that our daughter experienced in the hours, then days, following that initial negligent surgery.
As parents, we made sure that our daughter always had family at the bedside with her, and we advocated for her – at one point directly begging nurses to find a physician to help her. What this means is that we carry guilt – for not standing firm when they pushed for a surgery we were not comfortable with, for not going ourselves and finding a doctor on another floor when the one on call did not arrive, and for not insisting more forcefully that she needed to be transferred to another hospital. We experienced all the staff failures with our own feelings of guilt and our sense of impotency. The trauma for our daughter, ourselves, and those who cared devotedly for her at the hospital was not addressed in any subsequent responses. This means that suing a surgeon would not negate the feeling that this happened ‘on our watch’ and it would do little to support whatever healing may be possible in this situation.
Todres argues that while health care is essentially about care, when there is an adverse outcome – either through error, negligence or even malice – that foundational principle tends to be sidelined. 33 The justice needs of victims, frequently still related to the patient's care needs, begin to move through a legal framework that is not designed to promote healing. This leads to lost opportunities for patients and practitioners to heal (even if healing may be limited to emotional features and not underlying medical issues). When we attempted to envision a way that our justice needs could have been better met, we considered a restorative approach that sat within a responsive regulation framework. This reflected our own professional background in the restorative justice field as well as promising analysis by Todres, 34 Healy and Braithwaite, 35 Farrell, Alghrani and Kazarian, 36 as well as studies on alternative dispute resolution in health care. 37 Restorative justice is an approach to harm that attempts to rebuild relationships between victims (patients in this specific context), offenders (medical staff), and the broader community. 38 Restorative justice is a mechanism, rather than a prescriptive type of justice and can occur in tandem with other justice pathways, such as a retributive process. Restorative justice attempts to be transformational by addressing harm at an individual level while simultaneously transcending the individual to promote structural changes. 39 It has a relational core, thus a restorative process ideally supports all parties to promote healing. 40 By situating a restorative process in a regulatory framework, it should help to achieve outcomes that move beyond the individuals impacted and inform system-wide responses.
There is growing literature on restorative justice in the context of medical negligence. 41 Much of this literature focuses on the hospital’s or doctor’s perspective. While this is a significant perspective, and restorative justice does pay particular attention to the need to reintegrate the wrongdoer back into the community, restorative justice is also fundamentally concerned with the victim’s justice needs. Carroll and Reisel developed a powerful ten-step restorative framework providing guidance on what a restorative process could look like in a healthcare setting. 42 This process includes identifying stakeholders, holding a series of conferences (both separate and collaborative) and determining how information coming out of the process may need to be shared more broadly. 43 We propose that there needs to be an additional, precursor step in their process and that the last step (the dissemination of knowledge) needs to be directly linked into a responsive regulation framework.
The first step in a restorative process in a healthcare setting is to identify stakeholders. 44 We propose that additional groundwork needs to occur before this step. We suggest this because as educators in the field of restorative justice for over a decade and interacting with hundreds of students, we can count on two hands the number of students exposed to restorative justice before our courses. It is not realistic to expect patient-victims to have awareness of what restorative justice is or for them to immediately accept it as a desired justice pathway. There needs to be an opportunity for victims and/or victim’s families to learn about the ethos and goals of restorative justice. In Australia, patients going into an open disclosure meeting frequently do not feel prepared, leading to disappointment with the process and a potential escalation of the dispute. 45 For a restorative approach to be optimal, it must place the victims at the centre of the conversation and provide them with the resources to enter the conversation as equals. This is difficult in a medical setting where a profound imbalance of knowledge exists. But we propose processes could occur to ensure the victim is not merely a symbolic part of a box ticking exercise. To be successful and meaningful the patient-victim must be given information about restorative justice in an accessible, user-friendly format and given time to consider its strengths or weaknesses. Investing in the groundwork to support a restorative process that is meaningful for the victim is crucial. This may be a step that involves stakeholders from outside the hospital – in our case a disability advocacy service may have been helpful, but for others a restorative justice practitioner that could provide guidance throughout the process might be a more appropriate choice.
The final step in Carroll and Reisel’s process relates to the dissemination of information gained from the restorative process. 46 Holmes et al found a key area of dissatisfaction with the current open disclosure approach in Australia is the lack of information regarding how processes will be improved. 47 This was (and is) a gap in our own justice experience. Our key justice goal was ensuring that another family would not have the same or similar experience. We could speculate on what steps could be put in place to prevent these errors from recurring but what we missed was a facilitated dialogue. We would have liked to engage with the physicians and hospital administrators to hear their ideas regarding how these events could be prevented, and they needed to hear from us to understand what signs and alarms they missed. They have skills and knowledge to design processes that keep patients safe, and patients have expertise about how this can be navigated in collaboration with them. In our experience, although there was an investigation and we learned a physician had been let go, we were not reassured the larger procedural and potentially structural problems that led to the breakdown in our daughter’s effective care were resolved. Because our daughter’s experience was not due to one individual, but rather systemic and procedural issues within the hospital, we propose that the restorative process – and the final step in particular – must be situated within a broader responsive regulation framework.
Responsive regulation seeks to engage multiple stakeholders to address complex problems through a pyramid of processes that promote less punitive, more collaborative approaches before escalating to more punitive and coervice sanctions. 48 From a victim’s perspective, we believe a restorative response to medical negligence would be an early response, reflecting where Braithwaite suggests restorative practices are best suited – at the foundation of the regulatory pyramid. 49 Braithwaite notes that ‘privileging restorative justice at the base of the pyramid builds legitimacy and therefore compliance’. 50 There is potential to generate greater buy-in from the doctors, nurses and others who are responsible for implementing changes if they have a voice in the process.
At this foundational stage, all stakeholders affected by an injustice have an opportunity to discuss how they were hurt by it, their needs, and what might be done to repair the harm and prevent recurrence. 51
Yet, hospitals are hierarchical and the flow of responsibility on the floor reflects that. Directives and decisions tend to flow down the hierarchy, with staff further down the chain having progressively less autonomy over decisions. This is logical and often necessary: more education and experience should lead to more informed, evidence-based decision making. Many of the regulatory or procedural responses that need to occur will be enacted by those lower in this hospital hierarchy. This is the strength of a restorative approach, which seeks to flatten power imbalances, allow multiple parties to speak in the process, and empower the disempowered. Stakeholder participation in regulation, including in health care, is a determinant of proactive approaches to risk management. 52 A restorative process around mistakes that underscores participation by patient-victims, hospital staff and others may be crucial to facilitate meaningful changes. Our own experience of fatal negligence in these circumstances was deeply disempowering. We are confident that the whistleblowing nurse felt similarly disempowered, as did others who were participants in these events, reflecting an understanding that health care providers can themselves be second victims when adverse events lead to patient harm. 53 Empowering the voices of patient-victims in addressing medical negligence responses will improve outcomes for those immediately involved, and contribute to better informed practices in the future.
A degree of buy-in from medical professionals could also positively affect compliance while enhancing the well-being of victims. By situating a restorative approach into a system of responsive regulation, accountability measures can be built in. For example, if patient-victims, hospital staff and community stakeholders undertake a restorative process that identifies procedural changes that would improve patient and staff well-being, then these recommendations deserve to be thoughtfully and fully considered. If changes are adopted, these should be shared with all parties, including the victims. If changes are not implemented, victims also deserve to know why not and what alternative steps have been taken. This will help promote accountability and compliance, going some way to ensuring that victims are not further marginalised by a process designed to improve outcomes. If suggestions for change are consistently not implemented or breakdowns in care of a similar nature continue to occur, more coercive approaches to regulating either staff or the hospital will need to be implemented.
Importantly, and underscoring our own need for a more restorative response to medical negligence as shared in this article, an emerging body of evidence supports the adoption of restorative initiatives in health care. Alternative dispute resolution methods are an option in resolving healthcare complaints in Australia. In New South Wales (NSW), for example, the Health Care Complaints Commission provides for assisted resolution that recognises the importance of ‘rebuilding trust’ and provides ‘independent facilitation to help complainants and providers reach understanding and to agree on action’. 54 Additionally, the Clinical Excellence Commission, as part of the NSW health system, has sought to embed restorative principles in mental health care. 55 Further evidence of the value of restorative practice in health care settings is provided by Turner et al who found, in their survey of health care providers, that implementing a restorative justice culture in a Queensland mental health and specialist service clinic improved staff culture and second victim experiences. 56 In an evaluation of restorative responses to widespread harm in a health care context in New Zealand, those authors concluded that ‘restorative approaches have the potential to meet substantive, psychological and procedural needs following an episode of healthcare harm in ways that many current approaches do not’. 57 New Zealand has now adopted a policy of restorative approaches in responding to adverse events in health care. 58 These movements affirm our own experience of medical negligence, in that a restorative approach would provide for improved outcomes over the adversarial environment we encountered.
Conclusion
This article supports the idea of integrating a restorative approach into the regulatory framework for medical adverse events. We are mindful that we may have arrived at this conclusion not only as victims of medical negligence, who have in this article described how the current system has let us down, but also as scholars in the field of restorative justice. We accept that, while restorative justice holds great promise, it may not be the justice goal that all victims desire. Participation should therefore not be prescribed and foisted upon victims and their families if they do not wish to engage in it. However, we are drawn to the potential of a restorative approach within a responsive regulatory framework because it encourages the participation of diverse groups, including hospital administrators, doctors, nurses, victims and their families. As a collaborative process, it has the unrealised potential to create innovative responses that would improve the health and well-being of patients and hospital staff.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the University of Newcastle New Start Scheme.
