With technological advances in the medical industry outpacing those in the insurance industry, Wotton + Kearney Partner, Karen Jones and Dominic Flannery (Special Counsel) advise insurers to be alert to the opportunities created through the use of these advancements in the defence of proceedings.
The pace of medical advancements in the last decade has revolutionised healthcare and biomedical research and these changes are just the beginning. “Wearables” such as FitBit and AppleWatch already track heart rate, distance and movement type, and are ushering in a new era of professional health tracking. Nano therapy, the mapping and increased understanding of the human genome, the use of real-time data and artificial intelligence and patient empowerment through the availability of these dynamic resources and medical records are changing how medical conditions are being examined and treated at an unprecedented rate.
As computer science, engineering and medical science merge, opportunities arise for the insurance industry to apply these developments in better responding to medical issues raised in claims. A huge resource of health data is growing and its analysis by algorithms will result in more accurate recognition of symptoms, a better understanding of trends, and ultimately quicker, easier and cheaper diagnosis and treatment. Privacy and patient consent issues concerning the sharing of personal data aside, the flow-on effect to the insurance industry will undoubtedly be significant.
Assistance from the Court
Knowing that a new medical technique and technology exists is the first hurdle facing insurers and their lawyers, but maintaining awareness of current trends is only half the battle. Assuming that an insurer is aware of the usefulness of genome mapping in determining a causation dispute, using it practically in the defence of a claim will require the power of the Court. No matter its nature, every medical examination generally needs a patient’s consent before proceeding otherwise it may constitute battery in the eyes of the law. Insurers can, however, use the power given to the Court in certain circumstances to enforce medical examinations. For example, in New South Wales if the Court makes an order for a medical examination, a plaintiff must do all things reasonably requested by the medical expert and answer all questions reasonably asked. (Rule 23.4 of the Uniform Civil Procedure Rules 2005) The Court also has the power to order a plaintiff to submit to a test under the direction of a medical practitioner. (Rule 23.7 of the Uniform Civil Procedure Rules 2005) These orders provide insurers with an avenue to use medical examinations to build evidence to assist in the defence of a litigated matter. Similar provisions exist in other jurisdictions around Australia, such as Victoria’s Rule 33.04 of the Supreme Court (General Civil Procedure) Rules 2015.
While it is abundantly clear the courts recognise the usefulness of medical examinations and testing in legal disputes, insurers and their solicitors have traditionally utilised this power in a conventional manner, ignoring burgeoning medical technology such as robotic surgery. For instance, with robotics increasing the accuracy and control in surgery, examinations that were once considered impossible or highly invasive may soon be completed with minimal discomfort. As these technologies improve and become commonplace, insurers should give consideration to how far they can use the Court’s power to enforce these new medical examinations.
Although each request will turn on its own facts, the Court needs to be convinced that the examination is relevant and reasonable in respect to the person’s physical and/or mental condition in issue in the proceedings, striking a balance between the need for a fair trial and the plaintiff’s personal liberty. (Teys Australia Meat Group Pty Ltd v Flett [2015] QDC 177) As medical testing becomes increasingly non-intrusive in certain areas, the line between a procedure and an examination blurs. If an insurer can show the Court that using an emerging medical technique on a plaintiff is reasonable, safe and may assist in determining a real issue in dispute in litigated proceedings, what constitutes a medical examination will be expanded. There are already instances of this occurring such as where the Court ordered that a party provide blood for the purpose of genetic testing to determine whether an injury was a result of an incident the subject of a claim, or a consequence of a genetic disorder or another contributing factor. (Sharif Zraika by his tutor Halima Zraika v Walsh [2014] SWSC 1774; Plowman v Sisters of St John of God Hospital [2014] NSWSC 333) The short-term cost of these new procedures will likely outweigh the long-term claims costs if they can improve or better diagnose a claimant’s condition.
Where to from here?
Technologies such as genome mapping providing insight into the cause of certain diseases and conditions, robotic surgery making complex procedures commonplace and multi-functional radiology that can detect multiple biomarkers and symptoms at once, are just the beginning. Clearly there is scope for the medical profession to assist further in determining complex disputes that are commonplace in medical negligence and personal injury insurance claims.
Initially at least, the greater challenge is for insurers and their lawyers to be aware of these emerging techniques and specialised examinations. The next step is for insurers to leverage these technologies at a claim level. Jurisdictions around Australia already provide insurers with the means to compel a plaintiff to be examined by a medical expert so long as it is relevant and reasonable. However, it is up to the insurer and its lawyers to convince the Court that the results of a medical examination or test based on an emerging medical breakthrough will illuminate an issue of substance or be in the claimant’s best interests for the treatment of the injury and that it is justified in the circumstances.
Utilising these existing legal powers will hopefully be the catalyst needed for industry wide change creating a cheaper, more efficient and fairer claim process through the use of new medical technology. However, in our view such an industry-wide shift will only be possible if patient consent and privacy are adequately addressed and insurers will need to lobby governments in this regard to prove the benefits outweigh the social concerns.