Abstract

For 30 years, medical malpractice litigation has effectively been barred in New Zealand by accident compensation laws. Victims of medical error are rehabilitated and compensated through a no-fault, state-funded compensation scheme. Patients' rights (and providers' duties) are set out in a Code of Consumers' Rights, which applies to all providers of health and disability services, ranging from surgeons to traditional Maori healers and unpaid caregivers. Organisational providers such as hospitals are also covered. Complaints alleging a breach of the Code are resolved at the lowest appropriate level by a statutory Ombudsman, the Health and Disability Commissioner. Resolution techniques include advocacy, mediation and investigation, which may result in a finding of breach of the Code. The emphasis is on "resolution, not retribution" and "learning, not lynching". The Commissioner makes remedial recommendations, but does not award damages. Competence concerns are referred to professional registration boards, and serious breaches are referred for disciplinary proceedings. The New Zealand model of legislating patients' rights and enforcing them via an independent Commissioner is an interesting variant of professional self-regulation, and seeks to promote resolution of individual complaints and systemic improvements in health care quality. Investigation reports are widely distributed to promote learning. Despite initial professional resistance, the Office is becoming recognised for its key role in a regulatory system where medical malpractice claims are barred. A case study involving misdiagnosis of a fatal heart attack illustrates the flexibility of the New Zealand response to medical errors.