Could no-fault compensation for medical errors improve care and reduce costs?

Abstract

The costs of litigation are large and increasing, to a level that places a drain on precious health-care resources and affects the way medicine is practised. This article examines whether a change to a no-fault legal system would lead to reduced costs and improved patient care.

It's time to eliminate tort from the management of medical mishaps in the National Health Service

“…About £140-150 million was spent on NHS Resolution legal fees and another £450-500 million on claimant legal fees with total legal fees absorbing about a third of the cost of the operation. In some clinical areas, the total quantum paid in legal fees to settle claims approached the amount received by injured patients [4]. Despite annual operating costs approximating £2 billion, NHS Resolution estimates its current year costs to be about £8 billion annually, with each year of care provided in entities covered by NHS Resolution generating that amount in the future claims.…”

“…Multiple authors have argued that NHS Resolution, as it currently operates, may not best serve the needs of its stakeholders and, without reform, its cost might threaten the sustainability of the NHS itself [1][2][3][4][5][6]. The numbers themselves are sobering.…”

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“…Importantly, the line of distinction between system error and individual error may be blurry when it comes to technical human errors resulting from difficult, complicated and complex surgical procedures such as those examined before. It is argued in the literature that the "no-fault" system has more benefits compared to the negligence-based model, by reducing the costs of litigation and improving patient care (21) . Moreover, the "no-fault" system serves the interests of all the stakeholders involved in medical malpractice: patient, physician, healthcare system and the whole community.…”

“…Finally, it is crucial to bear in mind that, contrary to the negligence-based system that "objectifies" medical liability and according to the "no-fault system", physicians might be unpunished, and hence would be strongly discouraged from practicing "defensive medicine" 17 , which represents a huge cost for Public Health 24 . The "no-fault system" benefits both physicians and patients, and fosters a good relationship between them 21 . In this perspective, the patient's trust in the doctor would be strengthened, leading to an improvement in the quality of healthcare.…”

“…In this perspective, the patient's trust in the doctor would be strengthened, leading to an improvement in the quality of healthcare. Moreover, it also promotes the public interest by reducing the huge costs of litigation and those of "defensive medicine" 21,25,26 . These two aspects especially concern surgeons compared to clinicians, since they have a higher risk of medico-legal events 27 since they are involved in surgical procedures which, in most cases, are at high risk of errors due to their complexity and difficulty.…”