Salem Omar, Forster Christine
School of Medicine, University of New South Wales.
J Law Med. 2009 Oct;17(2):235-48.
This article presents the results of a survey conducted among New South Wales medical practitioners to assess the extent to which the enactment of the Civil Liability Act 2002 (NSW) has reduced the practice of defensive medicine. The new legislation was intended in part to reduce the practice of defensive medicine, both "assurance-type" measures, such as performing additional tests to assure patients they have received all possible care, and "avoidance-type" measures, such as avoiding the treatment of patients who may be at a higher risk for adverse outcomes and therefore at higher risk for filing lawsuits. However, the results of the survey reveal that many medical practitioners in New South Wales remain unaware of the legal reforms and the consequent reduction in their legal liability and continue to practise defensive medicine. This article argues therefore that while the ultimate aim of reducing litigation has been achieved in New South Wales through the introduction of the Civil Liability Act, the underlying and arguably more important aim of providing medical practitioners with a more secure environment in which to practise their profession effectively has not been achieved. The apparent failure to disseminate the legal changes to the medical profession illustrates the limitations of law reform to effectively engender social change without the active use of educative and other implementation initiatives.
本文介绍了一项针对新南威尔士州执业医师开展的调查结果，以评估2002年《新南威尔士州民事责任法》的颁布在多大程度上减少了防御性医疗行为。新立法部分旨在减少防御性医疗行为，包括“保障性”措施，如进行额外检查以确保患者得到了所有可能的治疗；以及“规避性”措施，如避免治疗可能出现不良后果风险较高、因此提起诉讼风险也较高的患者。然而，调查结果显示，新南威尔士州的许多执业医师仍然不了解法律改革以及随之而来的法律责任减轻情况，继续采取防御性医疗行为。因此，本文认为，虽然通过引入《民事责任法》在新南威尔士州实现了减少诉讼这一最终目标，但为执业医师提供一个更安全的环境以有效开展其职业的潜在且可论证更为重要的目标尚未实现。向医疗行业传播法律变化的明显失败说明了法律改革在不积极采用教育及其他实施举措的情况下有效促成社会变革的局限性。
