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.
Rapid Response:
No-fault compensation : A proposal
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
Competing interests: No competing interests