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