#10059 - No Fault System - Medical Law and Ethics

NO FAULT SYSTEM

WHAT IS IT

1. Patients who suffer some ‘adverse event’ while receiving medical care should receive compensation even if there was no negligence. Thus, it would unnecessary for a court to conduct an enquiry into whether the medical practitioner was negligent.

2. Vaccine Damage Payments Act 1979 – creates a no fault compensation scheme in respect of injuries caused by vaccinations performed by the NHS

3. Injury Prevention, Rehabilitation and Compensation Amendment Act (No 2) 2005 - in New Zealand this Act permits compensation to be paid for ‘treatment injury’ without the need to show that the doctor behaved negligently

AGAINST

1. LACK OF ACCOUNTABILITY

1. Merry & McCall Smith – no distinction between medical mispractice and unfortunate misadventure fails to bring doctors to account

2. ME: but law of negligence isn’t meant to bring doctors to account

2. NEW ZEALAND

1. Bismark et al (2006) – less than 3% of those who could claim under the scheme do so – meaning it only works because most entitled do not claim

2. Douglas – NZ shows that there is great difficulty in defining the boundaries of medical injury compensation

3. COMPENSATION CULTURE

4. STILL COMPLEX

1. could be new area of complexity drawing distinction between people who are ill (not compensated) and people suffering as a result of medical treatment going wrong

2. Douglas – could be major difficulties including the naturally incapacitated within the scheme

5. EXPENSIVE

1. CMO (2003) – extremely expensive – even with a 25% cut in the level of compensation it could cost between 1.6 bill and 28 bill p.a.

2. But these haven’t been found in New Zealand

3. Keren-Paz – negligence regime encourages settlement – indeed 97% of current clin neg cases settle due to uncertainty

IN FAVOUR

1. LESS IMPACT ON DOCTORS

1. Chief Medical Officer (2003) – 38% doctors facing a medical negligence complaint are to suffer clinical depression

2. OPENNESS

1. Bristol Inquiry Report (2001) – litigation prevents an environment of full, open reporting within the NHS and it’s simpler

2. APOLOGIES – s. 2 Compensation Act 2006 means an apology is not an admission of negligence

3. CURRENT LAW IS UNFAIR

1. Merry & McCall Smith – blame might be allocated unfairly. Doctor may be treated as a scapegoat for institutional failure

2. Complexity means that where 2 patients, one can prove damages substantial, one who can’t … - Douglas – highlights the unfairness of this

3. Douglas – tort systems involve long drawn out court, may impair rehabilitation of injured claimants, expensive to administer and expensive

4. Evans v Birmingham – highlighted a situation where despite the extensive burden on C and family from medical treatment, there was no compensation

4. DECREASE DEFENSIVE MEDICINE

• 1. Kessler, Summerton and Graham (2006) – defensive medicine involves offering unnecessary invasive procedures to avoid potential liability and equally not offering risky treatments that could have been beneficial

• Keren-Paz – could lead to doctors being more risk-adverse though, as there will be reputational loss irrespective of their negligence

5. MORE APPROPRIATELY DEALS WITH REPUTATION

1. Keren-Paz (man) – finding of negligence will almost always generate greater reputation loss than a finding of strict liability since the market cannot sort out negligent defendants from non-negligent ones under a strict...