‘GPs under pressure to do more in less time’: Plaintiff lawyer says negligence claims are increasing
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Personal injury lawyer Michael Passaro has witnessed a lot.
The senior managing solicitor at Law Partners has been the lawyer for Nadine Lont, whose baby died at Victoria’s Latrobe Regional Hospital in 2024.
He has seen GPs who have missed cancers, emergency doctors who failed to triage patients correctly and a surgical team that failed to properly count their instruments, overlooking a retained object that led to organ failure.
He says the ripples of the COVID-19 pandemic are still felt in terms of care that was put on hold.
He spoke with Heather Saxena.
AusDoc: How many active claims are you and other lawyers in your practice managing?
Michael Passaro: Law Partners firmwide has hundreds of active medical negligence claims across Victoria and NSW.
AD: Is the number of potential claims increasing?
Mr Passaro: We believe so, particularly in Victoria, following the pressure that the health system was under during and after COVID-19.
AD: How long do cases take to resolve generally?
Mr Passaro: Claims can take anywhere from 10 to 24 months, sometimes up to 36 months, to resolve.
This depends on the complexity of the claim and the position of the insurer.
If a claim involves an injury that will take significant time to reach maximum medical improvement, or the client is a minor, then these times can substantially increase.
AD: Are most of the negligence claims arising in the public system?
Mr Passaro: Generally, yes. If the claim is against a hospital, it’s mostly within the public system.
GPs are, in my view, the most highly represented in private practice.
AD: Are GPs being caught up in claims linked to public hospitals?
Mr Passaro: Yes, particularly when their patients are stuck on waiting lists.
We’ve seen some examples of patients being placed on waiting lists and subsequently re-presenting to their GP with more significant symptoms requiring a higher level of triage. Unfortunately, in some instances, a new referral or updated request listing the more severe symptoms is not sent to the public hospital.
Essentially, this means that patients who are deteriorating are not being reclassified.
I believe, although I don’t have hard evidence to support this, that GPs are under pressure to do more in less time now more than ever.
This is a significant factor in the increased cases we’re seeing where a GP has failed to undertake the appropriate diagnostic test or examination that the standard of care would require when a patient presents with a particular clinical concern.
For example, a patient presents with blood while toileting and the GP diagnoses haemorrhoids without a physical examination.
This patient was subsequently diagnosed with bowel cancer.
AD: Are understaffing and doctor burnout in hospitals a factor?
Mr Passaro: We aren’t generally privy to the underlying reasons why mistakes occur, but burnout could be a contributing factor to allegations of negligence in claims.
I genuinely think understaffing, either due to funding or attracting staff, and poor systems within hospitals in regional areas are key issues.
From this perspective, we believe adequate funding of hospitals is imperative to protect patient safety and wellbeing.
AD: AHPRA wants to mandate health checks for doctors 70 or older. Is age often a factor in medical negligence cases?
Mr Passaro: Age itself has not been an issue that I have come across in a case.
Having said that, it is important that doctors stay up to date on current treatment protocols and options.
AD: What is your advice to doctors when it comes to preventing patient harm, based on patterns in medical negligence claims?
Mr Passaro: In the public hospital setting, advocate for more funding from the Department of Health.Â
For GPs in private practice, you almost have to play everything as safely as possible in terms of being thorough, such as ordering more tests and diagnostic imaging.
AD: What high level changes could improve patient safety?
Mr Passaro: For hospitals [it is] systems, training, funding, open reviews and transparency and disclosure by the Department of Health.
For GPs, they need more time to conduct examinations, as opposed to the very short time that the Medicare codes currently allow.
AD: What percentage of claims related to hospitals are regional compared with metro, and what percentage are hospitals compared with private practice?
Mr Passaro: There seems to be a disproportionate number of cases where regional hospitals have a significantly higher number of claims, which in my view, ultimately comes down to funding and attracting enough of the right practitioners to work regionally.
We seem to have a greater number of hospitals versus private practice claims when it comes to medical negligence.
That being said, given the time constraints GPs are under, we are seeing higher levels of viable cases against GPs in private practice.
AD: What are common factors in claims that go against doctors?
Mr Passaro: Typically, it is poor record-keeping.
And busier clinics seem to have more claims, likely because they have less time to complete examinations and undertake their notes.
AD: Are more cases settling in the plaintiff’s favour than in the past?
Mr Passaro: No, it’s broadly about the same in terms of ratios.
However, we’ve seen an increase in viable cases and therefore an increase in the number of settlements.
AD: What are the typical legal fees for a case that is settled and not fought in court?
Mr Passaro: It really depends on the type of case.
You would expect anywhere from double to quadruple the amount when a case doesn’t settle and goes to court.
AD: Is there a faster way to resolve medical negligence cases, such as the use of panels?
Mr Passaro: Dispute resolution methods, such as mediation, can help resolve medical negligence claims more quickly and cost-effectively.
When medical negligence claims are referred to mediation, parties attempt to reach a settlement with the help of a mediator.
There is a high success rate of cases resolving at or shortly after mediation, allowing for settlement without the need to go to court.
Contrary to what many insurers might believe, plaintiffs do not get “worn down” by litigation as much as expected.
Since most lawyers in the industry work on a no-win, no-fee basis, there are no ongoing costs for the plaintiff to run the claim.
In many cases, plaintiffs may become resentful due to delays in the proceedings and the tactics adopted.
Their costs increase over time.
As a result, many insurers who could have achieved a modest early resolution may now face a plaintiff who has been steeled by the long litigation process and is tempted to “have their day in court” given they have “come this far already”.
