Compensation for medical injury in New Zealand: does "'no-fault" increase the level of claims making and reduce social and clinical selectivity?

The issues of patient safety and quality of care have gained policy attention with a growing appreciation of the scale and impact of medical injury in health systems. While the focus is clearly on the prevention of iatrogenic injury, the question of patient compensation is now also considered important, if only because in fault-based tort systems the fear of litigation may itself be a barrier to the disclosure and open discussion of medical error. No-fault systems, by contrast, do not require proof of culpability, and thus may both reduce barriers to compensation and increase disclosure of error. Little evidence, however, is available on the performance of such systems. This article reports on the analysis of two data sources-a sample of hospital admissions and a complete set of compensation claims for medical injury. Both are for the same year and region of New Zealand, a country that has maintained a no-fault system of accident compensation for a quarter of a century. Just over 2 percent of hospital admissions were associated with an adverse event that was potentially compensable under scheme criteria. While the claims process was well targeted, the level of claims making and receipt was low, with the ratio of successful claims to potentially compensable events being approximately 1:30. Comparison of social and clinical characteristics of the two data sets revealed a degree of selectivity. Compared with the hospital events, the typical successful claimant was younger and female and was much more likely to have experienced a surgical adverse event that, while unexpected, was not due to substandard care. It is concluded that, in interpreting these results, account needs to be taken of a number of features unique to the New Zealand system. These include: the limited payoff for a compensation claim (no pain and suffering or lump sum, free hospital care); the relative complexity of the grounds for claim (either rarity and severity or practitioner error); and a history of limited litigation for medical error. This suggests that, while the New Zealand system is well targeted, cheap, and free of financial and legal barriers, a change in legal doctrine alone has not in itself been sufficient to remove completely the selective and low level of claims making traditionally associated with patient compensation under tort.     

Wrongful birth in New Zealand

Wrongful birth cases have been a feature of the common law. In this article the author examines wrongful birth cases against the background of the New Zealand accident compensation scheme. Initially cases were accepted under the scheme, but after major changes to the legislation in 1992, wrongful birth cases were declined cover. The author argues that this should continue to be the case, and that, as a result, New Zealand courts will have to make the same policy decisions in this area as those made by other Commonwealth courts.     

Chemical fingerprinting of gasoline. Part 3. Comparison of unevaporated automotive gasoline samples from Australia and New Zealand

A gas chromatography-mass spectrometry with selected ion monitoring (GC-MS (SIM)) method was used to discriminate samples of unevaporated gasoline collected from Auckland, New Zealand and Sydney, Australia. This method was applied to 28 samples of unevaporated gasoline, covering three different grades (regular unleaded, premium unleaded and premium plus unleaded), that were collected from service stations in Auckland, New Zealand in summer (February) and winter (August). The 14 samples of summer gasoline collected in New Zealand could be divided into seven unique groups. The 14 samples of winter gasoline from New Zealand could be divided into 14 unique groups. The 14 samples collected in New Zealand during February 2002 were then compared to 24 samples of unevaporated gasoline collected from service stations in Sydney, Australia during the same month. Most of the samples could be differentiated based on their country of origin.     

域外医疗损害无过失补偿制度研究

如何实现医疗损害的合理分担和对医疗损害被害人的充分救济,是世界各国普遍面临的难题。新西兰、瑞典、美国和法国等国家都较为重视对医疗损害被害人的补偿,先后建立了契合本国实际的、各具特色的医疗损害无过失补偿制度,并以立法和修法的形式实现制度的确立与变革。     

Forensic Analysis of Explosives Using Isotope Ratio Mass Spectrometry (IRMS)—Part 2: Forensic Inter-Laboratory Trial: Bulk Carbon and Nitrogen Stable Isotopes in a Range of Chemical Compounds (Australia and New Zealand)

Abstract:  Comparability of data over time and between laboratories is a key issue for consideration in the development of global databases, and more broadly for quality assurance in general. One mechanism that can be utilized for evaluating traceability is an inter-laboratory trial. This paper addresses an inter-laboratory trial conducted across a number of Australian and New Zealand isotope ratio mass spectrometry (IRMS) laboratories. The main objective of this trial was to determine whether IRMS laboratories in these countries would record comparable values for the distributed samples. Four carbon containing and four nitrogen containing compounds were distributed to seven laboratories in Australia and one in New Zealand. The laboratories were requested to analyze the samples using their standard procedures. The data from each laboratory was evaluated collectively using International Standard ISO 13528 ( Statistical methods for use in proficiency testing by inter-laboratory comparisons ). "Warning signals" were raised against one participant in this trial. "Action signals" requiring corrective action were raised against four participants. These participants reviewed the data and possible sources for the discrepancies. This inter-laboratory trial was successful in providing an initial snapshot of the potential for traceability between the participating laboratories. The statistical methods described in this article could be used as a model for others needing to evaluate stable isotope results derived from multiple laboratories, e.g., inter-laboratory trials/proficiency testing. Ongoing trials will be conducted to improve traceability across the Australian and New Zealand IRMS community.     

The uncritical enthusiasts versus the uninformed sceptics: regulation of complementary and alternative medicines

The introduction of a treaty between Australia and New Zealand to regulate complementary and alternative medicines (CAM) has revived the age-old debate between advocates of conventional medicine and those of CAM, particularly with regard to the standards of regulation that should be applied. Currently, the systems for regulating CAM products in Australia and New Zealand are very different, making harmonisation contentious, as the proposed treaty follows the Australian system very closely. New Zealand and Australian principles of good regulatory practice stipulate that only minimum necessary standards should be imposed, and should be transparent, understandable and equitable. It is argued that the proposed treaty does not adhere to good regulatory standards, and that other forms of harmonisation should be sought to avoid adopting a regulatory regime in New Zealand that is overly restrictive and harmful to the New Zealand CAM industry.     

Accusatorial and information-gathering interview and interrogation methods: a multi-country comparison

Suspect interviewing and interrogation practices have been studied in many different countries, including those in North America, Europe, Asia, and Australia. These studies have produced useful and interesting findings, while also leaving an opening for future inquiry. Specifically, previous research has noted that we might expect interrogation and interviewing practices to vary among different countries or regions, due to distinct approaches to suspect questioning. However, to our knowledge, few previous studies have examined the comparative use of tactics, techniques, and procedures employed to elicit confessions and information from criminal suspects across multiple countries. In the present study, using a consistent survey, we contrasted the interviewing and interrogation practices of 185 practitioners from America, Canada, and Europe, Australia, and New Zealand. In large part, we found that American and Canadian interrogators were similar to one another, and conformed to an accusatorial approach (in both deception detection and questioning techniques). In contrast, interviewers from Europe, Australia, and New Zealand conformed more to an information-gathering approach.     

Geographical profiling in a novel context: prioritising the search for New Zealand sex offfenders

The present work explores the utility and value of geographical offender profiling methodologies within a novel context, considering both theoretical and practical issues relating to their application. The effectiveness of a well-known geographical profiling system, Dragnet, was tested across 101 New Zealand sex offence series, and findings compared with those derived for an equivalent sample from the UK. Average search costs (the amount of the total offence area that needed to be searched, starting from predicted offender home location, before the offender's actual home was reached) were far greater for the New Zealand sample than their UK offending counterparts. It is argued that this is because the spatial behaviour of New Zealand offenders violates many of the assumptions that Dragnet and other similar geographical profiling systems make in predicting offenders' home locations. Calibration of the system to the specific home-crime distance patterns of the New Zealand offenders did not enhance the efficacy of predictions made to a significant extent. It is consequently argued that, in their current form, geographical profiling systems are limited in their ability to account for samples displaying very different spatial characteristics to those that they were developed from and for. The implications of these findings for the general utility of geographical profiling are discussed, and ways in which systems might be developed in order to broaden their scope and applicability are suggested.     

NATIONAL VICTIM COMPENSATION: Its Cost and Coverage

In recent years, numerous states have established programs to compensate victims of violent crime, and efforts to enact a national victim compensation law continue. One of the major obstacles to positive legislative action on victim compensation programs has been the lack of reliable estimates of the potential costs of such programs. In this article, a series of compensation program models with varying eligibility criteria are examined. Data from a variety of sources—victimization surveys, the Uniform Crime Reports, and existing state compensation programs—are brought together to determine the effects of differing statutory criteria on the coverage and costs of possible national victim compensations programs. Program model recommendations are made and policy issues are discussed.     

Factual causation in medical negligence

The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. Even when supplemented by the "material contribution" principle, satisfying the onus of proof of causation can be an insuperable obstacle for plaintiffs, particularly in medical cases. Yet, having found a breach of duty, a court's sympathies may gravitate toward the plaintiff at this point in the case. Accordingly, courts have sometimes accepted a relaxation of strict causation principles. The judicial devices are described: a special principle of causation in particular duties of care; a shifting burden of proof; "bridging the evidentiary gap" by drawing a robust inference of causation; treating a material increase in risk as sufficient proof of causation; and permitting causation to be established on the basis of the loss of a material chance of achieving a better outcome and discounting damages. In Accident Compensation Corp v Ambros [2007] NZCA 304 the New Zealand Court of Appeal recognised the need for a legal device to ameliorate the injustice sometimes caused by the strict rules of causation, and preferred the "inferential reasoning" approach favoured by the Canadian common law for use in the context of the accident compensation scheme. It is hoped that the New Zealand Supreme Court approves Ambros if the opportunity arises.     

Access to justice for New Zealand health consumers

New Zealand has evolved a just, sensible and balanced system for addressing adverse medical events. This article considers potential changes to enhance justice for health consumers after an adverse event. Patient motivations for claiming are described. Changes to the complaints regime are considered with the aim of opening up access to the Human Rights Review Tribunal. Modest change only is advocated, to avoid the potential for the tribunal to become a de facto appeal mechanism. The preferable solution is greater access to Health and Disability Commissioner investigations. The second part of the article considers changes, some implemented already, to the compensation regime to make it more affordable. These will compromise the ability of the scheme to address the remedial interest of injured patients in compensation. Undesirable consequences are likely to occur across the system. Policy-makers need to consider the ramifications of change for the system as a whole.     

论原始社会犯罪人赔偿制度

20世纪70年代开始至90年代,几乎所有西方国家都规定了罪犯赔偿制度。追溯罪犯赔偿历史,它是原始社会时期的一种犯罪治理手段,是犯罪的伴生现象。相较于今天的犯罪治理手段,它更注重个人身心、生活、行为和社会秩序的恢复。西方国家、伊斯兰社会和非洲、亚洲等的原始社会,都曾广泛采用罪犯赔偿制度。原始社会罪犯赔偿制度注重被害人的被害恢复,重视为避免社会冲突,要求罪犯承担弥补犯罪所造成的恶果的责任,同时也十分重视恢复社区安宁。这对于我们今天的犯罪治理有着重要的参考价值。     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

PARALLEL IMPORTATION AND SERVICE QUALITY: AN EMPIRICAL INVESTIGATION OF COMPETITION BETWEEN DVDS AND CINEMAS IN NEW ZEALAND

Investigations into the causes and effects of parallel importinghave concentrated on price discrimination, but arbitrage canalso occur on non-price dimensions. Using a natural experimentin the New Zealand film distribution industry between May 1998and November 2001, we examine the effect of parallel importingon quality as it relates to the timing of the availability offilm media. We demonstrate that (a) cinema revenues were underminedas consumers substituted viewing films on parallel importedDVDs for the cinema format and (b) that studios responded tothe threat of parallel imported DVDs by bringing forward therelease of films into New Zealand cinemas. The reduced delaybetween US and New Zealand cinematic release dates is shownto be consistent with the introduction of competition when timingis a dimension of quality and choice. We conclude that parallelimportation of DVDs almost certainly resulted in a net increasein welfare in New Zealand.     

Why some market reforms lack legitimacy in health care

Market-oriented health policy reforms in the 1980s and 1990s generally included five kinds of proposals: increased cost sharing for patients through user fees, the separation of purchaser-provider functions, management reforms of hospitals, provider competition, and vouchers for purchasing health insurance. These policies are partly derived from agency theory and a model of managed competition in health insurance. The essay reviews the course of reform in five countries that had a national health service model in place in the late 1980s: Italy, New Zealand, Spain, Sweden, and the United Kingdom. Special consideration is given to New Zealand, where the market model was extensively adopted but short lived. In New Zealand, surveys and polls are compared to archival records of reformers' deliberations. Voters saw health care differently from elites, and voters particularly felt that health care was ill suited to commercialization. There are similarities across all five countries in what has been adopted and rejected. Some market reforms are more legitimate than others. Reforms based on resolving principal-agent problems, including purchaser-provider splits and managerial reforms, have been more successful, although cost sharing has not. Competition-based reforms in financing and to a lesser extent in provision have not gained legitimacy. Most voters in these countries see health care as different from other parts of the economy and view managerial reforms differently from policies that try to make health care more like other sectors.     

‘It’s Not OK’, but ‘It’ never happened: parental alienation accusations undermine children’s safety in the New Zealand Family Court

ABSTRACT

While the public campaign slogan in New Zealand when referring to family violence, is ‘It’s Not OK’, many women in New Zealand report that the Family Court prefers the catchphrase ‘It never happened’. When women and children escaping violence and abuse reach out to the New Zealand Family Court for protection believing the justice system will help them, they often enter an alternative reality where they are not believed and are subsequently made less safe. This is particularly so for those women whose well-founded fears for their children’s safety get reinterpreted as evidence of a deliberate attempt to alienate the children from their fathers. The Backbone Collective, an independent organisation, surveyed New Zealand women about their experiences in the Family Court, finding that many women reported being accused of parental alienation. This paper investigates the sources of these allegations of parental alienation and how they impact mothers and their children. We argue that the use of parental alienation in the New Zealand Family Court is undermining the international rights of children.     

A ‘class of no political weight’? Interracial Marriage,Mixed Race Children and Land Rights in Southern New Zealand, 1840s-1880s

ABSTRACT

Interracial marriage was a defining feature of interaction between local Ngāi Tahu and newcomers in southern New Zealand from the early nineteenth century. Scholarship has explored the importance of such relationships to development of New Zealand’s early resource-based economies and to colonial assimilation policies. However, the experiences of cross-cultural households and families in colonial New Zealand are less well documented.

Using a body of writing produced by fathers and their mixed-race children in response to land claims investigations in the mid-nineteenth century, this article explores the political, economic and social world of interracial families in southern New Zealand. The correspondence over land rights reveals the ongoing importance of kinship ties through generations as colonial expansion impinged on these communities. Through petitioning and letter writing, fathers and children contested what marriage and family meant and strategically asserted their individual and collective identity in the face of increasing land dispossession and economic hardship.     

Workers' Compensation, Social Security Disability, SSI, and Genetic Testing

This article argues that the use of genetic testing to determine eligibility for worker compensation and/or social security disability benefits would seriously undermine the social purposes of the laws.     

Judicial Independence, Judicial Promotion and the Enforcement of Legislative Wealth Transfers—An Empirical Study of the New Zealand High Court

This paper investigates the Landes-Posner thesis on judicial independence using data on public law decisions in which the government was the defendant decided in the New Zealand High Court over the period 1958–2001. We use survival analysis to examine whether successive New Zealand governments have promoted judges from the High Court to the Court of Appeal (which stands above the High Court) on the basis of political considerations, the quality of the judge's decision-making or both. Our findings suggest that the quality of decision-making has generally been important. Consistent with the weak form of the Landes-Posner hypothesis we find no evidence that governments have used their powers to punish judges who decided cases against them. On the contrary, we find some support for the strong form of the Landes-Posner thesis that governments positively use their powers to secure judicial independence.