No-Fault Regime Is Than a Negligence Rule
The medico-legal circles have been replete with calls to replace the Negligence Based system for compensation for medical errors with the no-fault. In the current negligence-based system, a health professional faces liability for breach of the duty of care. However, it is the patient’s onus to prove the doctor’s negligence in court when pursuing damages for negligence. According to Bismark and Paterson (2006), the negligence-based system is a slow, costly, inefficient, stressful, and unreliable for seeking compensation when a person suffers harm through medical negligence. Cohen and LaFlam, (2007) contend that a negligence-based system promotes inequities since a person who has agonized an injury may fail to get compensation because he cannot identify the doctor responsibly or meet the onus of proving the doctor’s negligence in a court of law. This paper argues that the no-fault compensation system is better than the negligence-based system since it promises a simpler, fairer, effective, and less grueling means for seeking compensation while promoting a healthcare environment characterized by reduced medical errors. This paper will explore the need to shift to a no-fault compensation system in the USA healthcare system. The paper will look at the weaknesses of the negligence-based compensation system and relate this to the benefits accrued through the no-fault system.
Doctors in their profession are imposed with the duty of care whereby, they are supposed to exercise reasonable care and skill in diagnosis, advice and treatment of their patients. Use of the negligence-based compensation system is intended to ensure doctors observe the highest standards of care and that patients are compensated for injuries suffered as a result of doctor’s negligence of duty (Dickson et al. 2016). However, the comparison between the rate of medical malpractice and the rate of compensation for injuries suffered by the patients as a result of the malpractices indicates that very few individuals are compensated even among those with viable negligence claims. In the U.S. it is only 50% of patients in pursuit of damage in court who have been compensated in cases involving less than $250,000 (Gibson 2015). The statistics indicate that the negligence-based system has failed in its role to support a medical-error free environment and to assist patients in their pursuit of compensation — the threat of medical practitioners facing lawsuits for their negligence act as a deterrent for reducing medical errors and thus play a vital role in maintaining high standards of clinical care (Sohn 2013). However, this approach used by the negligence-based system has failed to contribute methodically to making the healthcare safer. The assertion that lawsuits would act as a deterrent against medical errors is illogical since most of the errors are not intentional and hence, it is hard to deter them.
The tort-based system of compensation is committed to the fault criterion, but any advantage of the system comes at a considerable cost. The court based system of pursuing damage for injuries inflicted as a result of doctor’s negligence is expensive especially on the part of the patient (Dickson et al. 2017). The litigation processes through the tort-system are long and arduous they may impair on the rehabilitation of the injured claimant. Hyman & Silver (2006) posits that it is problematic to envisage the outcome of the litigation process due to the susceptibility of the procedures that need to be followed. The court put the onus of proving negligence of duty on the patient even in the event where the patent has suffered clear injury. Over 50% of expenses spent on medical malpractices in the U.S. is directed towards funding litigation rather than compensating the injured patients (Dickson et al. 2017). Additionally, compensation only occurs in less than 10% of potentially viable claims. Moreover, the rate of compensation that the patients receive is mostly not commensurate with the extent of injuries they suffer. Some of the patients suffer permanent disabilities or even death and the compensation they receive cannot cater for adequately for such damages. The promoters of the tort system argue that it promotes deterrence to medical errors despite failing to promote an environment that supports the compensation of patients who suffer serious injuries. The pursuit of damage has been proven to be a nightmare for most of the patients who have agonized injuries as a result of a doctor’s negligence. The negligence-based system is slow, costly, inefficient and unreliable for patients who have suffered serious injuries to get any meaningful compensation (Wallis 2017). Most of the patients cannot afford the cost of ligation especially among the aged who lacks a constant flow of income. The bureaucratic nature of the tort law system discourages several patients have suffered genuine injuries from seeking compensation due to limited chances of being successful in their pursuit of damages.
The tort law system also fails to impose the cost of injury recompense on the perpetrator due to compulsory uptake of liability assurance by those who are likely to cause injuries (Wallis 2015). The liability insurance creates an incentive for careless action and more medical errors from medics (Wallis 2015). Liability insurance deters doctors from actively engaging in more actively reporting in adverse events (Wallis 2015). Subsequently, patients are denied an opportunity to receive financial redress for their injuries for lack of supportive evidence even in the events where they may be well entitled. Doctors fail to report injuries in adverse events since the litigation process has been established to be stressful on the doctors and their families. It also leads to some doctors giving up on medical profession entirely to avoid being implicated in serious cases — those doctors who do not quite the profession result to defensive medicine which in turn drives the cost of operation (Weisbro & Breen 2012). Through defensive medicine, doctors will shy away from engaging in medical practices with an element of risk and hence the hospitals will be forced to employ new doctors who are proficient in that area of care.
Conversely, the no-fault system can help to overcome most of the insufficiencies noted with the tort law system including but not limited to high costs in proving negligence and failure to compensate patients adequately. One of the biggest advantages of the no-fault system is predictability of award. Unlike the tort law system that creates bias through randomness in the award of compensation, the no-fault system ensures equal opportunity for any individual to the claimant to receive damage compensation regardless of the injury he/she suffers (Wallis 2017). The no-fault system provides a reliable coverage for all injured people irrespective of the circumstances that lead to the person suffering the injury. It is also a more efficient system since care and support is guaranteed in the event that a patient suffers an injury as a result of a doctor’s negligence (Weisbrot & Breen 2012). In the no-fault regime, compensation is guaranteed even without the proof of fault. The chances of the patient receiving the compensation payment are not contingent on the attribution of fault. However, unlike the tort law system, the no-fault system embodies the idea of strict liability to promote a high sense of care by doctors in providing healthcare services. The strict liability ensures that the doctors go an extra mile to decide which precautions to take and to what extent they need to take the precaution to prevent causing an injury on the patient (Watson & Kottenhagen 2017). Under the tort law system, the court needs to establish the extent of negligence of duty based on the legal standards for the socially optimal level of care. The approach makes the doctors focus on private benefits he/she will gain rather than the level of effects her action has on the total amount of damages. However, the no-fault system the court determines the size of damage that the patient suffers and thus the doctor considers the number of social costs and reduces her mistakes to socially optimal levels. The graph can best explain how the no-fault system can help bring socially optimal results.
Source: An Economic Model of Tort Law
The graph above represents how the no-fault system can help reduce expected damages in the provision of care leading to the optimum social result. The problem under this graph can be represented as x+p(x) D(x). The total cost of accidents is minimized at the point x*. At levels of attention below x*, an extra dollar of attention reduces the casualty’s probable indemnities by more than one dollar, so total costs are abridged (An Economic Model of Tort Law, n.d, 42-43). However, beyond x*, an extra dollar of attention decreases probable damages by less than one dollar, so total costs rise. At point x*, the slope curve equals to negative of the slope of p(x) D(x) curve (An Economic Model of Tort Law, n.d, 42-43). The slope of x represents the marginal cost of care at $ 1while p(x) D(x) represents the marginal benefit of care.
As indicated in the graph above, the no-fault will be cheaper for the patient to demand compensation since they will only be charged with the responsibility of proving causation and not fault which is unlike in negligence-based system where the injured had to prove both causation and fault (Hyman & Silver 2006). It is evident that the no-fault system demand less fact-finding hence involves less costly trials than in the case of the negligence-based system. While the negligence-based system creates an environment that leads to litigation, the no-fault system leads to low cost of litigation.
Other than lowering cost, the no-fault system can play a vital role in changing the doctor’s attitude in matters relating to patients’ safety. The system gives doctors a chance to learn from mistakes and avoid defensive medicine. It will also support reporting of adverse outcomes and support collection of data reading the amount of harm that a patient has suffered.
In a nutshell, the no-fault system proves to be better than the negligence-based system since it provides all patients with an equal opportunity to receive compensation for injuries suffered irrespective of the circumstances the injuries were suffered. The no-fault system promotes optimal social result by doctors applying all necessary precautions to prevent injuries. The assertion that application of the tort law system acts as deterrence for doctors from making medical mistakes is illogical. There is a lack of evidence to support the assertion, and hence, there is need to adopt the no-fault system.
Bismark, M. and Paterson, R., 2006. No-fault compensation in New Zealand: harmonizing injury compensation, provider accountability, and patient safety. Health Affairs, 25(1), pp.278-283.
Cohen, L.T. and LaFlam, J.M., 2007. Is” No-Fault” the Cure for the Medical Liability Crisis? Commentary 2. AMA Journal of Ethics, 9(4), pp.317-321.
Dickson, K., Hinds, K., Burchett, H., Brunton, G., Stansfield, C., & Thomas, J. (2016). No-fault compensation schemes: A rapid realist review.
Douglas, T., 2008. Medical injury compensation: beyond ‘no-fault’. Medical law review, 17(1), pp.30-51.
Gibson, E., 2015. Is It Time to Adopt a No-Fault Scheme to Compensate Injured Patients? Ottawa L. Rev., 47, p.307.
Hyman, D. A., & Silver, C. (2006). Medical malpractice litigation and tort reform: It’s the incentives, stupid. Vand. L. Rev., 59, 1085.
Sohn, D.H., 2013. Negligence, genuine error, and litigation. International journal of general medicine, 6, p.49.
Watson, K. and Kottenhagen, R., 2017. Patients’ Rights, Medical Error and Harmonisation of Compensation Mechanisms in Europe. European Journal of health law, 25(1), pp.1-23.
Weisbrot, D. and Breen, K.J., 2012. A no‐fault compensation system for medical injury is long overdue. Medical Journal of Australia, 197(5), pp.296-298.
Wallis, K.A., 2015. Learning from no-fault treatment injury claims to improve the safety of older patients. The Annals of Family Medicine, 13(5), pp.472-474.
Wallis, K.A., 2017. No-fault, no difference: no-fault compensation for medical injury and healthcare ethics and practice. Br J Gen Pract, 67(654), pp.38-39.