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Rapid Responses: Rapid Responses published:
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Costs of current negligence system
- Kevin Barraclough (10 May 2003)
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No fault or No responsibility ?
- Gerry M Ferguson (10 May 2003)
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No Fault is No Panacea
- Robert WJ Dingwall (10 May 2003)
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No fault compensation, no panecea.
- David J Garwood (10 May 2003)
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Re: No fault or No responsibility ?
- barry d mendelawitz (11 May 2003)
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"No fault" Compensation would short-change Patients
- Peter Walsh (12 May 2003)
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Re: Costs of current negligence system
- William J Gaine (12 May 2003)
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Re: No fault or No responsibility ?
- William J Gaine (12 May 2003)
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A couple of points
- Gerry M Ferguson (13 May 2003)
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Re: No fault or No responsibility ?
- alan j carson (14 May 2003)
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New Zealand experience would strongly support no-fault compensation systems
- Laurence Malcolm, Frank Frizelle (19 May 2003)
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no fault compensation and comics
- Giuseppe Vetrugno, Achille M. Luongo, Domenico De Mercurio, Massimo Volpe, Marco Marchetti (23 May 2003)
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No-fault compensation : A proposal
- Umo I. Esen (2 June 2003)
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Kevin Barraclough, GP Painswick Surgery, Gloucestershire
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Another point Dr Gaine might have made in his excellent article is the collosal cost and inefficiency of the current adversarial system. The Pearson Report estimated that only 55% of the total costs of medical litigation in the period 1971 - 76 actually went in compensation to the claimant. 45% went in legal costs. This compares to an aministrative cost of 12% for the (no fault) Industrial Injuries Scheme and 12% for the Social Security System(1). If the primary function of the system is to compensate the victim rather than to deter and punish the doctor then these percentages indicate that this adversarial system is grossly inefficient. Reference 1: P Cane, Atiyah's Accidents, Compensation and the Law, 6th Edition, Butterworths Competing interests: None declared |
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Gerry M Ferguson, Partner Withy King, Solicitors, 5/6 Northumberland Buildings, Queen Square, Bath BA1 2JE
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In response to William Gaines' Editorial : 'No fault compensation systems : Vol 326 10.5.2003/997 What makes clinical and administrative NHS, and private healthcare, staff so special that they feel their sensibilities need to be protected by claiming immunity from the civil court system? Despite the fact that their errors can cause some of society's most grievous injuries and deaths, they somehow feel that they should be treated differently to any other service industry, such as railway workers, or companies in the construction industry, who are answerable to the civil law if their employees maim or kill other workers or members of the public through negligence. If you want a prime example of a costly, cumbersome, capricious scheme prone to excessive delay, you only have to look at the NHS administered Complaints Procedure, which is universally discredited and demonstrates that, even in very clear cases of negligence, clinicians and administrators are quite unable to accept responsibility, even where no power exists to award compensation. There is nothing in the adversarial nature of litigation that dictates that NHS personnel have to behave as they do, when confronted with a complaint that they have injured a patient unnecessarily through carelessness. It is the NHS culture. You may say that lawyers are not so sensitive to criticism, when they make mistakes, because their errors do not maim or kill, they only cost their clients money. To some extent, that is true, but the culture is different. Generally when a lawyer is accused of negligence s/he has a professional duty to ensure that the client takes independent advice straight away. If s/he is then found liable to pay compensation in accordance with the principles of tort law, most lawyers accept this with more or less good grace. The lawyer distances himself at an early stage from the case and passes the claim to the professional body to appoint another lawyer to examine the allegation, and if it is found proved then the client is compensated. The same attitude prevails in a lot of other professions. Why do Doctors, nurses and administrators in the NHS ( and private healthcare industry ) seem to prefer to try and avoid this type of independent analysis ? Partly, I suspect, it is because of the personality types involved. Some clinicians and managers are brought up in a bullying and macho culture where any error is seen as an unacceptable personal weakness, even if the error is dictated by a systemic failure. In contrast to the situation in a negligence claim against a lawyer (where it is a truth universally acknowledged that the lawyer who acts for himself in litigation has a fool for a client), the clinicians involved in a complaint do not step away from the process and often confront the patient in meetings and dictate the tenor of complaints correspondence. This often personalises the conflict and leads directly to the very perception that the patient is seeking to pillory an individual that the NHS is trying so hard to leave behind. Even following a pre-action protocol letter of claim, very often the individual clinician will dictate the detail of the response. Often there is no independent assessment of the treatment until a long way down the road. By this time the clinician takes it as a personal affront if the NHSLA suggests that his or her care has been substandard. The tort system is no more harmful, unpredictable and unjust than the Complaints Procedure administered by the NHS themselves. What clinicians seem to resent about it is that it is not subject to the sort of cosy assumptions that they can expect if judged solely by their peers, and they are not in control of the process once litigation begins in earnest. The costs in litigation are generally dictated by the reasonable or unreasonable approach of the litigants. Trusts and Defence Societies and NHSLA case handlers who try and resist perfectly sensible claims tooth and nail may more than double the cost to the NHS of an eventual settlement. This attitude is endemic in some Trusts and Defence lawyers, yet completely absent in others. Most unmeritorious claims by patients never get to court because they are weeded out by the pre-action protocol for the resolution of clinical disputes. Presently, some 80% of negligently injured patients never seek redress at all. Under a no-fault model the NHS would have to pay for all those injuries, whether trivial or grave, and a substantial number of additional injuries, which would not be compensated under the tort system. Instead of denying breach of duty, the emphasis would simply shift to a disingenuous denial of causation and even if the patient was successful in establishing causation, s/he would be compensated on a tariff scale that would probably be deliberately set at some 30% of the damages for pain suffering and loss of amenity that the patient would receive from a civil court. Whose interest does this serve apart from the NHS bodies and the Treasury ? It is grossly unfair to the patient who has to survive on a much lesser sum than s/he would be entitled to under the tort system. It is illogical to propose a 'no-fault' scheme, unless you accept that all the administrative costs of proving whether an injury was avoidable and caused by an identified act or omission are paid by the NHS, as part of the scheme. In fact, what is likely to happen is that a patient will be passed from the ward to PALS, then to the ICAS, when it is in place, and then the ICAS advocates, funded by the Department of Health, will have to fight the patient's corner with an inquisitorial tribunal. Who will serve on these tribunals ? Local Doctors ? Who will pay for the medical evidence to establish avoidability / causation ? Who will decide this issue at local level ? The doctors' friends and colleagues ? Where is the necessary independence, if the scheme is not to fall into disrepute? Any such scheme must not end up like the Criminal Injuries Compensation ( CICA ) Scheme. This is a national scandal and a by-word for inefficiency, delay and a total disinterest in the effect of the body's shortcomings on the individual applicants. The real agenda here seems to be to enable the NHS to carry on in the same old way without being subject to any sort of external scrutiny. The dishonest manufacture by the AMA in the United States of a so- called 'medical malpractise crisis' is not borne out by independent research. The tragedy of the Jesica Santillan case ( a teenager who died when a heart lung transplant failed because the elementary precaution of tissue matching was not carried out) has caused an outcry in America about capping damages and the so-called 'tort reform' agenda, introduced by the Republicans to reward their partners in business with an artificial ceiling on the extent of their liabilities to the public, so that there are no costs pressures to force them to maintain proper standards. New Zealand's no-fault scheme went bust, to all intents and purposes. If the model now involves ' a heavy emphasis on disciplining doctors at fault', how on earth can William Gaine square this feature with his determination to protect health workers from having to account for their shortcomings, by avoiding a so-called blame culture ? The Swedish system relies on an entirely different level of national insurance contribution, which would have to be funded to a similar level by the NHS to achieve equivalence. Why are drug errors to be excluded? It is because multi-national drug companies are even more averse to having to answer for substandard products, than doctors and nurses are averse to having to account for substandard care. They can outspend anyone, including governments, on obfuscation that prevents any sensible causation evidence being obtained at a sensible cost. If you can't show that a person did something s/he should not have done, or did not do something s/he should have done, how can you show an injury was 'avoidable' ? Individual responsibility is the key to improvements in standards in the NHS. To claim complacently that overly bureaucratic 'risk management processes, clinical governance, peer review and monitoring by hospital authorities and the General Medical Council' make the deterrent effect of having to accept personal responsibility for an adverse incident a thing of the past, is to badly miss the point. The reason why so many things go wrong, during the course of medical treatment and care, is because you can never actually see who is responsible for anything in the modern NHS. There are so many different bodies involved in delivering healthcare, all with their own labyrinthine service level agreements. Unwieldy and uncoordinated teams provide ill- defined care in the community. Sometimes the same person is working for a different Trust depending on where he is standing in a hospital at any particular instant! The same mistakes happen again and again, because it's always someone else's responsibility to deal with a problem. Noone knows who, only that it isn't them. Trusts blame other Trusts, Health blame Social Services and the patient cannot find anyone who will say : ' Yes. That is my responsibility. I accept I made an error. It was caused by this fault in the system, which I will assume responsibility for putting right. I can see you have been injured. I will encourage my employers to pay you a fair sum in compensation for what has happened to you.' Once that happens, the NHS will cease to become enmired in the tort system, because patients will see that they are truly listened to, and that the NHS genuinely learn from their mistakes and do not always try and wriggle out of their responsibilities. Competing interests: Clinical Negligence Solicitor, representing claimants |
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Robert WJ Dingwall, Visiting Fellow American Bar Foundation, Chicago IL 60611
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Advocates of no-fault compensation are clearly beginning to fly this particular kite again. However, as Dr Gaine's editorial shows, they are still no nearer to answering two crucial problems. The first is the test of eligibility - Dr Gaine is incorrect in contrasting tort as requiring proof of fault where no-fault requires proof of causation. Tort actually requires both of these and the most serious problems for claimants tend to arise from issues of causation. These will not be eliminated by a no-fault system. The disbursement of public funds will still require a high standard of proof and many claims will continue to fail after incurring substantial handling expenses. The second problem is a degree of realism about the costs of the system. No-fault works in Nordic countries because it provides a small top-up to a generous social security system. In the UK, we have a system that is notoriously mean to the chronically sick and disabled. Tort awards are inflated by the need to provide a much larger top-up, which, of course, creates inequities between successful and unsuccessful litigants. A Nordic-style no-fault system would seriously undercompensate everyone who benefitted from it. A no-fault system that paid economically adequate compensation would seriously challenge the weaknesses of our general social security system. The tort system is far from perfect. However, it works after a fashion; it is less expensive than generally understood; and it gives some measure of redress to those who succeed. No-fault has not been introduced to the UK because of a lack of thought and research but because every scholarly investigation has shown that it has as many potential problems - different problems but problems none the less. No-fault is no panacea. Competing interests: None declared |
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David J Garwood, General Practitioner Full Time Hornsea HU18 1LP
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Editor- I agree that the system for resolving an action in clinical negligence needs reforming, however I doubt the reality will live up to Gaine’s expectations. Causation is in fact a major hurdle for the claimant, having to prove that “but for” the alleged act they would not have suffered injury. This may sound simple in itself, and the burden of proof is only 51%, but as we all know medicine is a complicated business, and proving that an act caused an identifiable part or a particular aggravation of an injury can be problematic. Also unless one adopts the New Zealand model where acceptance of the compensation bars one from recourse to the courts then the hope that this method would “facilitate the culture of openness” is a forlorn one. Gaine W “No-fault compensation systems” BMJ 2003;326:997-8. Competing interests: None declared |
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barry d mendelawitz, aspiring medical mediator west australia 6153
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Gaine's paper made passing note of alternative dispute resolution. This was not commented on by your rapid responders. There is a small body of evidence in the US and Canada of the value of mediation which needs early introduction in a potential dispute if litigation, with all its attendant impacts is to be minimised. I would especially like to hear from your legal correspondents on this valuable technique for another way of injecting fairness to a system which has become as horrendous in Australia as in the UK and US. Barry Mendelawitz MBBS FRANZCOG AIAMA Competing interests: None declared |
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Peter Walsh, Chief Executive Action for Victims of Medical Accidents, 44 High st, Croydon, England, CRO 1YB
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EDITOR- I was surprised to read William Gaines’ arguments for the so called ‘no fault’ compensation system to be brought in the United Kingdom (BMJ, 10th May 2003). Action for Victims of Medical Accidents, the independent UK charity which acts for the people affected by medical accidents, disagrees. These schemes have been considered off and on for years, and each time the conclusion has been that it is in no –one’s interests to introduce them. As Mr Gaines points out, the approach is based on making payments without either establishing that there has in fact been negligent treatment, or basing the amount of compensation on what the injured party actually needs. This would lead to tokenistic standard payments that do not reflect the damages suffered or meet the real costs of dealing with the aftermath left by avoidable medical accidents. In effect we would be short changing some of the most deserving, vulnerable and needy. The State would not benefit as without the discipline of having to prove both a breach of duty of care and causation of the injuries, there would be far more cases receiving compensation – in fact the increased cost could be overwhelming. All that would be achieved is cutting out much of the legal costs incurred in the current, rather tortuous process but replacing them with yet more cost. However, Mr Gaines is wrong to say that “lawyers often take a third of the compensation”. Lawyers’ fees and costs can amount to a third of the overall costs of a successful clinical negligence case, but the compensation element in the UK (unlike the USA) is not eaten into by the lawyers. The tort system is not perfect, and much could and is beginning to be done to make the system more efficient and quicker, but exempting medical treatment from this aspect of the law would be a mistake. I do hope that Mr Gaine’s view that making such an exception for providers of health care is necessary in order for a culture of openness to flourish. The doctors I know would be insulted by the suggestion that they need special treatment or protection from potential litigation to encourage them to act in their patients’ best interests, or comply with the requirements of clinical governance and adverse event reporting. In the NHS, there is already Crown indemnity anyway (the NHS is sued – not the doctor). I do however agree with Mr Gaines that it would be sensible for smaller, less complicated claims for compensation to be dealt with as part of the complaints procedure. It would be fairer, and NHS trusts could save a lot of resources by making ex-gratia payments where there appears to be a prima facie case, thereby obviating the need for the expensive litigation process. I am glad to see that this is already a recommendation of the expert group reporting to the Scottish Executive. I hope the long awaited Chief Medical Officer’s report on clinical negligence will say ‘yes’ to such an approach in England, but ‘no’ to so-called ‘no-fault’ compensation for more complex, contested cases which require the rigour of the legal system. Peter Walsh, Chief Executive, Action for Victims of Medical Accidents, 44 High St, Croydon, England CRO 1YB (Peter@avma.org.uk) Competing interests: None declared |
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William J Gaine, consultant orthopaedic surgeon Falkirk Royal Infirmary, FK1 5QE
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Limitation of space did not allow a full discussion of the shortfalls of the present adversarial system and equally of the limitations and problems of the no-fault system. Indeed the cost inefficiency has appeared to escalate as evidenced from the National Auditor Office report indicating that in 65% of cases, where settlements were up to £50,000, the legal costs were greater than the damages awarded(1). While a no-fault system would not be cheap it would be more equitable for harmed patients and not just the few who manage to get through the cumbersome and expensive adversarial tort system. Reference 1. National Audit Office. Handling clinical negligence claims in England. HC 403 session 2000-2001, 3rd May 2001. Competing interests: None declared |
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William J Gaine, consultant orthopaedic surgeon Falkirk Royal Infirmary, FK1 5QE
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In response to Gerry Ferguson’s comments on the editorial on no-fault compensation systems: Vol326 10-5-2003 p. 997. The editorial did not advocate that doctors, nurses or administrators in the NHS take no responsibility for all errors they make. In fact, negligent medical professionals who are grossly negligent should face the criminal system like everyone else. The point of the article is that the present adversarial system is not working for the majority of harmed patients. Mr Ferguson confirms this in saying that 80% of medically harmed patients never seek redress. Why? Because the system is daunting, cumbersome, expensive and very slow. In the process clinicians and nurses are often made scapegoats and suspended while the real culprit is inadequate funding, staffing and system failures. The traditional approach that an individual must always be blamed when an error occurs had been refuted by in-depth analysis of errors made in complex high risk organisations such as the nuclear and airline industries. Blame is usually self-defeating and does not facilitate preventive measures and learning from errors. The health service is extremely complex and very unlike other services and industries such as the rail or contruction industry. The variables present in medicine far exceed those present in any other occupation. The vast majority of doctors and nurses are motivated by a genuine desire to care for patients. Human error is inevitable but often results from system faults caused by inadequate staffing, overworked staff and poor resources. Good communication, teamwork, near miss and adverse event reporting as well as regular mortality and morbidity meetings help to reduce the risk of errors. However, fear of litigation is a negative force, as recognized by many judges, in particular the late Lord Denning who feared the spread of defensive medicine. Clinical governance and the open culture of reporting adverse incidents as advocated by the NHS Plan are not compatible with an adversarial system. Indeed, Mr Ferguson’s fellow professionals acting for the NHS Trusts advice staff involved in cases of alleged medical error to say nothing without legal advice. This advice hampers early explanation and address of such errors. Having worked in the health service for 12 years I would not have noticed that a bullying and macho culture is common. However, one might suspect that these qualities are necessary to run a successful law practise ! With regard to the suggestion that doctors are not willing to be regulated independently I would strongly disagree. The modern NHS clinician faces a myriad of regulatory and auditory mechanisms including mandatory audit of clinical outcomes, yearly peer appraisal, five-yearly revalidation and mandatory continuing medical education and professional development (CME/CPD). The disciplinary powers of the General Medical Council were greatly increased by the Medical (Professional Performance) Act in 1997 with strict Fitness Practice and Competence Regulations. The National Clinical Assessment Authority (NCAA) investigates, monitors and re- educated substandard performing doctors. In addition, the number of suspended consultants (over 200 at present) underlines the ease with which hospitals are willing to investigate allegations against doctors. The investigatory powers of the Commission for Health Improvement (CHI) and the increasing guidelines issued by NICE and the Royal Colleges all ensure that the NHS doctor is the most closely regulated professional in the country. While not espousing a no-fault system as the panacea for the NHS, its’ performance in other countries suggests that it is a more worthwhile than the present system. Despite rumours that the New Zealand system has gone bust, it is very much alive and kicking. Changes introduced by the Accident Rehabilitation and Compensation Act 1992 addressed some of the shortcomings such as disciplining negligent medical professionals and while containing costs continues to be a challenge public opinion is very much against reintroducing the adversarial tort system. The compensation system as used in the Scandinavian countries, New Zealand and Canada is much more equitable in that all patients harmed by medical errors, and not just those who are informed, educated and financially able enough to take out a litigation case, are entitled to an explanation and compensation. Having said that, recent pilot studies on the use of mediation and alternative dispute resolution as an alternative to litigation are encouraging and these methods should also be used to reduce the cost of litigation to the NHS. The time when a patient will find someone to say ‘Yes. This is my responsibility, I made an error and I will endeavor to put it right and encourage my employer to pay you just compensation…’ will be when the blame culture inherent in the adversarial tort system is removed from the health care environment. Unfortunately, human nature is such that it responds defensively to blame. Competing interests: None declared |
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Gerry M Ferguson, Partner Withy King, solicitors, 5/6 Northumberland Buildings, Queen Square, Bath BA1 2JE
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80% of medically harmed patients never seek redress. Why? The reason is unfortunately that they are usually deliberately kept in the dark about the cause of their iatrogenic injury. Unlike lawyers, who immediately have to advise their clients if they know they have been negligent, doctors do not have the same professional obligation. As a result, when a patient asks why they have been injured, instead of openly explaining what has happened, a clinician is generally deliberately vague, or in a significant minority of cases actively misleads the patient as to what has happened. It is nothing to do with the perceived drawbacks of the adversarial litigation system. It is because injured patients and their families mostly have no idea their injury was avoidable, and the NHS takes good care to ensure they remain in ignorance, if at all possible. Scapegoats This process is entirely the product of the NHS culture. There is nothing in the litigation process that says that an individual has to be blamed, or encourages Trusts to over-react by suspending individual members of staff. Very often this is evidence of the sort of 'bullying' culture that I referred to in my response. ( See BMJ Careers as recently as 12 April.) In some cases it is a response to an expression of sorrow by a clinician to the patient or family, in defiance of advice to say nothing. 'Never say you are sorry' This is almost the first advice given to a Medical Student when he enters Medical School by the Defence Societies. It is repeated throughout clinicians' careers. It is a mind-set that has little to do with the exigencies of litigation, although I am sure it makes it easier for some clinicians to live with their consciences, in not advising patients that they know they have injured through negligence, if they can blame their disingenuous silence on the litigation process, or lawyers. Because of course we all know lawyers are to blame for all society's ills ! Competing interests: Clinical Negligence solicitor acting for claimants |
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alan j carson, consultant neuropsychiatrist Royal Edinburgh Hospital, Edinburgh, EH10 5HF
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I read the description of a lawyers response to making mistakes and their respective duties with amusement. Twice I have had to deal with the failure of lawyers (in Scotland) to properly read title deads for property transactions. On both occasions the response was the same and highly aggressive - we deny all responsibility if you think something is wrong- sue. In the first instance the elderly relative did not want the trouble, on the second occasion we did, successfully! My recollections of the events were rather different from the caring helpful approach described. what a gift to gie us- to see ourselves as others see us! would seem to apply certainly North of the border. Competing interests: married to a lawyer |
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Laurence Malcolm, Professor Emeritus and Consultant Aotearoa Health RD1 Lyttelton, New Zealand, Frank Frizelle
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We note with interest the very tentative support by Gaine for a no- fault compensation system for the United Kingdom1. He advocates that this ‘should be introduced on a limited pilot basis and be monitored closely for some years’. Very legitimate reasons are advanced, such as are the more open disclosure system now required by clinical governance. We agree. There is increasing evidence that the adversarial and closed nature of a fault-oriented system can substantially add to failure to address quality and safety issues1. The experience of New Zealand would strongly support the much more immediate implementation of a no-fault system. Insurance coverage through the Medical Protection Society at $NZ 900 annually (£300) is a small fraction of insurance cover in all comparable countries. The New Zealand system separates the financial compensation for medical misadventure from the disciplinary, though both have links with the other. Patients who want to complain about their care do so through the Office of the Health and Disability Commissioner (HDC), however there is no financial benefit for doing so. Out of some 25-30 million clinical contacts annually a minuscule number of complaints reach the Office of the HDC (Table 1). Of these a small and rapidly diminishing proportion are judged as having breached the Patients Code of Rights under the HDC Act. A proportion are found guilty by the Medical Practitioners Disciplinary Tribunal. On the other hand compensation for the consequences of medical misadventure, under New Zealand’s no-fault system, has been handled for three decades by the Accident Compensation Corporation (ACC). There have been concerns about how claims are handled and the low level of compensation paid. But the system has many advantages for both patients and clinicians. Of claims submitted to ACC 32% are accepted and some compensation paid. Fault does not have to be established, only that the event occurred. By far the majority are classified under the heading of medical mishap which is rare and severe. A small minority of claims (14% of those accepted)) are classified as medical error, a failure to observe a standard of care reasonably to be expected. Despite open and increasing support for patients to make claims to ACC only a very small proportion actually do so. Recent studies indicate that, of the 12.9% of hospital admissions associated with adverse events, some 19% were compensable3,4. Much larger numbers of compensable events would occur in non-hospital care. Yet, as Table 1 shows, out of some 25 to 30 million clinical events annually only about 2400 claims are made of which a third are judged as justifying compensation. There is some evidence that this rate of claims is lower than in fault-oriented compensation systems. This low level of claims is surprising, given the lack of any financial barrier to enter the system, and especially given the important progress made recently in building a quality culture in New Zealand, with a much more open system of disclosure in both primary and secondary care ,5,6. This adds to the increasing evidence that a more open system may lead to a lower rate of complaints and claims. Related to this is the large amount of evidence that patients complain and claim more in order to be heard, to receive an explanation, an apology and to be assured that action will be taken to prevent such events occurring to other patients1. The level of claims and complaints are closely linked to media publicity about clinical failings and bear little relationship to actual harm. The ability of complaints and misadventure claims to be handled in an open manner allows data to be collected and processes to be changed completing the audit cycle without the concern that such changes may affect the outcome of some claim. In summary evidence from New Zealand indicates that there is no linkage between a no-fault compensation system and patient quality and safety. Rather the reverse may be true. Our experience strongly supports the need for the priority implementation of a no-fault system in other countries, including the UK. Addressing this issue should be seen as essential to the implementation of clinical governance and the building of a quality culture. Table 1 Trends in numbers of claims to ACC, complaints to the Health and Disability Commissioner (HDC) and doctors found guilty by the Medical Practitioners Disciplinary Tribunal Year 1998 1999 2000 2001 2002 ACC claims (32% of these accepted) 1484 1268 2309 2427 2422 HDC complaints received 1102 1174 1088 1397 1211 HDC breach found 227 130 90 54 23 Practitioner found guilty 11 12 7 22 NA Laurence Malcolm
Frank Frizelle
References 1. Wears RL, Wu AW. Dealing with failure: the aftermath of errors and adverse events. Annals of Emergency Medicine 2003;39:3-5. 2. Gaine WJ. No-fault compensation systems. BMJ 2003;326:997-8. 3. Davis P, Lay-Yee R, Briant R, et al. Adverse events in New Zealand public hospitals I: occurrence and impact. NZ Med J 2002;115. URL: http://www.nzma.org.nz/journal/115-1167/271/ 4. Davis P, Lay-Yee R, Fitzjohn J, Hider, P, Briant R, Schug S. Compensation for medical injury in New Zealand: Increase the level of claims making and reduce social and clinical selectivity? J Health Politics, Policy and Law 2002; 27(5): 833-854. 5. Malcolm L, Wright L, Barnett P, Hendry C. Clinical leadership and quality improvements in district health boards in New Zealand. Clinical Leaders Association of New Zealand, Auckland, 2002. www.clanz.org.nz, www.moh.govt.nz/ online publications/quality 6. Malcolm L, Wright L, Barnett P, Hendry C. Clinical leadership and quality improvements in primary care organisations in New Zealand. Clinical Leaders Association of New Zealand, Auckland, 2002. www.clanz.org.nz, www.moh.govt.nz/ online publications/quality Competing interests: None declared |
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Giuseppe Vetrugno, Forensic pathologist "A. Gemelli" University Hospital, Largo A. Gemelli 8, 00168 - Rome, Italy, Achille M. Luongo, Domenico De Mercurio, Massimo Volpe, Marco Marchetti
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Studying the tort liability system, an Italian author (1) has compared four legal models – proper to different countries – to four cartoon characters. Uncle Scrooge’s misadventures stand for the U.S. "plutocratic" model. The Beagle Boys’ efforts to steal him from his fortune are justified by the rich booty. Similarly, Insurance Companies which protect hospitals and doctors, tries to defend their coffer. Because of the high stake, people who cause a damnage try to defend themselves in every way. Any defence will crumble if there is the menace of a legal action: the jury – made up of common people, Donald Ducks often angry with the health system – will probably open the coffer. The English “sadic” model is like Sylvester’s stories. When Sylvester has already caught Tweety, a big dog and Granny force him to set Tweety free. In the tort of negligence system, the injuried party has to show that he is protected by the duty of care – following the proximation rule – and that a bad conduct was a proximate cause of the injury. At the end, the House of Lord – as the big dog – could intervene and consider the compensation has to be reduced because “shocks the conscience of the Court or of their Lordships”. The “acculturated” French model works like Bugs Bunny’s cartoon. He spontaneously offers himself and convinces Elmer the hunter not to kill him, being all skin and bones. In France, tort liability is often recognised, but liquidation is just a bag of bones. The Italian model reminds Wile Coyote: he never catches Road Runner because he never fires him but likes to use ruinous devices and unusual plans. In Italy, at least ten different kinds of damages are identified (biologic, moral, environmental, sexual ability, family quiet, property, free time damages) but they have never been unified by a unique method of evaluation. A no fault legislation exists in workmen's compensation, in military injury case, in public employees injury case and in the case of damages caused by blood-transfusion or compulsory vaccinations. In the case of transfusion, being unable to identify the blood donors, the proceeding could come to a standstill and the injured party will be compelled to apply to a court. In this case, the failure of “no fault compensation” depends on the Italian law. No fault compensation gives a unitary system of evaluation. Modern invasive medicine exposes patients to medical risks apart from the doctor’s ability. This system often balances the doctors’ and the injured party’s interests. William J Gaine (2) recall the Swedish “no fault compensation” system. It considers various possibilities of lesions caused by medical treatments. No fault compensation is refunded with a lump-sum payment, established by a committee. This system allowed to reduce medical law suit. In our opinion, the sharing of the adverse effect risk among the taxpayers could be the right way. It allows doctors to take the responsibility upon themselves: they are commited to evaluate damages and they are able to prevent repetition of the detected adverse events. But the “no fault compensation” system is not the silver bullet: it has to be fitted to the law model of the receiving country to avoid the social adverse effects as the ones caused by kryptonite to Superman! (1) Zencovich V.Z. Law and Comics in Il danno esistenziale. Milan: Giuffré, 2000; (2) Gaine W.J. No-fault compensation systems. BMJ 2003;326:997-998. Competing interests: None declared |
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Umo I. Esen, Consultant Obstetrician & Gynaecologist South Tyneside Healthcare Trust, Harton Lane, South Shields, Tyne&Wear, NE34 OPL
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The editorial by Gaine (1) again focuses attention on compensation schemes for clinical negligence. The problems with the current tort-based system are well understood ( 2) but it is surprising that in the United Kingdom while arbitration (3) and mediation (4) have recieved some consideration as alternative dispute resolution mechanisms in the area of clinical negligence compensation, nothing tangible has been done in respect of a no fault scheme, despite its attractions. A no-fault compensation scheme aims at removing the need for the claimant to prove that someone was responsible for the injury sustained, before obtaining compensation. This will immediately remove one of the hurdles that the claimant has to overcome in claiming compensation. It will also do away with the name and blame culture which, at the moment makes doctors scapegoats. Not only will this remove the stress and worry of litigation experienced by doctors facing clinical negligence action, more importantly, it will create an atmosphere where accurate data in respect of medical injuries can be collected such that proper studies can be performed. This should lead to provisions to reduce accidents happening. Doing away with fault does not mean doing away with causation. This remains a thorny issue irrespective of the method of compensation adopted, but a necessary one, which clearly identifies patients injured in the course of their treatment. The current rules which govern causation under the tort system should hence remain. It would be necessary to define what is to be compensated for and what is to be excluded, otherwise the scheme becomes a compensation scheme for any adverse event associated with medical treatment. Oliphant(5) has proposed using the test of "error" in determining who qualifies for compensation, where the question to be asked is "if with the benefit of hindsight and with the most expert opinion, if the treatment was right or wrong". The natural progression of disease would not be compensated for, and known and recognised complications of a given treatment would not be compensated for, provided it can be demonstrated that adequate counselling and information had been given prior to the treatment. Compensation would also be limited to physical injury. The mechanism for calculating compensation would take into account the seriousness of the injury and duration of incapacitation. Compensation under the scheme would include compensation for pain and suffering as well as economic loss, all subject to a maximum level of compensation. Compensation for economic loss should be paid in instalments with periodic reviews, while pain and suffering should be a one off lump sum payment. This could be combined with a tariff system of set payments for particular injuries. Patients needing long term care as a result of their injuries should be required to obtain such care within the NHS unless in such instances where such care is not available within the NHS. This should deal with the current absurd situation where a patient's compensation requirements are based on private medical care arrangements, when indeed nothing stops such patients returning to the NHS for the very care for which they have received compensation for. The scheme should be administered by the NHS Litigation Authority, and in that way trusts with large compensation bills can be appropriately penalised with higher insurance premiums by the CNST. This will help shift the onus for the prevention of errors from the individual doctor to the hospital trust . This shift will lead to a global approach to injury prevention via hospital protocols and procedures for reducing the risk of injuries. A system which would significantly be a better approach to injury prevention rather than concentrate efforts on preventing litigation-- efforts which may not always equate with injury prevention. Compensation under a no-fault scheme will benefit many more claimants although at a lower level of compensation compared with the current system. The current system is over due for change as it serves neither the patient nor the doctor. References 1. Gaine W J . No-fault compensation systems. BMJ 2003; 326: 997-998 2. Esen U I. Tort Compensation for victims of medical accidents. New Law Journal. 2001 pp 846&854 3. DOH. Arbitration for Medical Negligence. 1991 4. Mulcahy L, Selwood M, Summerfield L, Netten A. Mediating Medical Negligence Claims: An Option for the Future? Stationary Office 2000. 5. Oliphant K. Defining Medical Misadventure- Lessons from New Zealand. Medical Law Review. 1966; 4: 1-31 Competing interests: None declared |
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