No Fault Regime Better Than a No Fault Rule - Medical Negligence

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‘Is a no fault regime better than a negligence rule as a way of dealing with the causes and consequences of medical error?’ When assessing whether a no fault regime is better than a negligence rule in dealing with the causes and consequences of medical error, it would seem prudent to first understand the meaning of the term “medical error”. Liang defines medical error as ‘a mistake, inadvertent occurrence, or unintended event in health-care delivery which may, or may not, result in patient injury’ (2000, p.542). The consequence of these errors (or adverse events) that lead to patient injury, and the method by which we determine and administer compensation for such injuries, has been the source of heated debate amongst scholars in recent times. Fenn et al suggest that public policy has two key objectives to address in this area: ‘providing compensation to those who have suffered injuries and providing incentives to practitioners to supply an appropriate standard of care’ (2004, p.272). Fenn et al (2004) also relay the dissatisfaction with the current scheme in England, which uses the tort of negligence to award damages; describing it as costly and time consuming due to the need to prove fault, meaning too few patients receive compensation for their injuries.

To be awarded damages under the tort of negligence, a claimant ‘must prove that the defendant is at fault for the injuries cited’ (Fenn et al, 2003, p.272), with fault being the operative word here. There are four key areas to consider under a negligence rule, these are: ‘(1) establishment of a duty of care, (2) evidence that the physician’s services did not conform to the appropriate standard of care, (3) a determination that the failure to act in accordance with the duty of care was the cause of the harm, and (4) existence of a physically objective and ascertainable injury’ (Horwitz & Brennan, 1995, p.167). The effect of this is an injurer is only liable for the cost of accidents if they have taken care in an amount less than the established legal standard, as represented below.

Fig.1
Not liable for damages
Liable for damages

x’=x*
X
P(x)D
X+P(x)D
Care (x)
£

This graph represents the private cost function for a potential injurer (the bold line) under a negligence rule. In this case, the privately optimal amount of care taken is equal to the social optimum amount of care. This is because if a potential injurer takes care below the legal standard, and is therefore at fault, they bear the cost of both their own cost of care (x) and the expected cost of damages (P(x)D). However if they take care up to or above the legal standard of care, they are no longer liable to pay the cost of damages under a negligence rule, and so to minimise their total costs, as we assume a rational, self interested person would; a doctor liable under a negligence rule would take care at the legal standard. In the case of medical negligence, the difficulty comes in how a court adjudges the legal duty of care, as they are reliant upon expert advice in order to set a reasonable level. In instances of medical negligence, the Bolam test is applied to determine if a doctor has behaved negligently; and can be taken to mean ‘that a doctor or nurse will not be negligent so long as he/she acts in accordance with the professional practice or opinion’ (Hartwell, 2005, p.294). By this, a court decides the level of care a doctor should have taken based on the opinion of a professional body on the reasonable amount of care expected from an ordinarily skilled doctor practicing in the same field. Hartwell (2005) has suggested that the Bolam test is not without its problems; in that it inhibits courts exercising a restraining influence and argues that judges must not be deterred from interference when justified, solely because actions taken have been approved by a body of medical opinion.

Strong financial incentives under a negligence rule provide deterrence from substandard care by...
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