no fault regime better than a negligence rule | Law Teacher
no fault regime better than a negligence rule
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Conventionally, it has been assumed that people who have been injured as a result of poor medical treatment will want financial compensation. In reality, evidence suggests that an explanation, an apology and reassurance that the incident will not be repeated are more important to patients. In one study of people affected by medical injuries, 60 per cent wanted an apology, explanation or inquiry into the cause of the incident however only 11 per cent thought that financial compensation was the most appropriate remedy. In medical practice there are two ways in which medical error are dealt with, a ‘no fault regime’ and a ‘negligence’ rule, both of are underpinned by the theory of tort law. It’s purpose is “to protect the interests of people in their property and persons from damage by others” [Cooter and Ulen]. Currently in the UK, the system of tort law is negligence based. A doctor will be liable if they breach their duty of care to the patient, which causes harm or damage to the patient (Hughes V Lord Advocate). This essay will evaluate the two approaches in dealing with medical error in relation to exploring an alternative approach. Fenn et al. (2004) demonstrates the economic theory of tort law with the following graph:
Where the standard of care is observable by everyone (individuals and courts), the graph explains why the negligence system would bring socially optimal results. The total costs of accidents are represented by x + D(x) where x is equal to the cost care, and D(x) is the cost of resulting damages. The total costs of accidents are minimised at the point x*. In an idealised situation the doctors utility of wealth is adversely affected by any choice other than x*; as Fenn explains, letting u(W) be the professionals utility of wealth, his level of care solves u(Wx) if x ≥ x*;u(WxD(x)) if x socially optimal level of care, leading to the socially optimal number of accidents. One possibility is for the courts to enforce the choice of care directly by making this the legal standard of care which is owed to potential victims, called the negligence rule. Therefore negligence is defined as ‘the breach of a legal duty to take care which results in damage undesired by the defendant.’ There are three elements of negligence; duty of care, breach and causation. In order to succeed in an action in negligence the claimant must establish that a) he/she is owed a duty of care by the defendant, b) that the defendant breached the duty by failing to http://www.lawteacher.net/medicallaw/essays/isanofaultregimelawessays.php
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