Dealing With Consequences of Medical Error - Research Paper Example

Is a no fault regime better than a negligence rule as a way of dealing with the causes and consequences of medical error? The law, and allied legal institutions, is responsible for the allocation of ownership rights and responsibilities, particularly when there is a dispute on resource allocation (Dnes 1996). The role of the medical malpractice liability system is classified into two main aspects. One is concerned with redressing individuals who are victims of negligence, while the other aspect deals with the creation of incentives for doctors to give appropriate level of care (Kessler & McClellan 1996). In terms of insurance, medical malpractice insurance is dependent on community ratings (Quinn 1998). The provision of health care service is wrought with risks. Some medical operations are going to result in the death of the patient, no matter how correctly the operation has been carried out. There are some drugs that are bound to have side-effects on some patients, although they have been proven to work successfully on others. Faults may occur in the administration of the drugs, which may result in harm to the person, or even death. Some of these accidents can be prevented and only a fraction of such accidents are the result of negligence or fault by the health care provider. There is no single definition of medical error. The US Institute of Medicine (IOM) defines error as the lack of a planned action to reach its expected level of completion (i.e. an error of execution) or the usage of an incorrect plan to achieve the required aim (i.e. an error of planning) (Towse et al. 2003). An adverse condition is defined as one where injury occurs due to mismanagement rather than the health condition of the patient. Those adverse events which occurred as a result of error are known as preventable adverse events. A subset of adverse events is negligent adverse events. These are those events that occur as a result of error and satisfy the country’s standard for an act of negligence (Towse et al. 2003). From the above discussion, it can be established that injury to a person can occur through three main ways. Injury can occur through a preventable adverse event. This means that an error occurred in the managing the patient, but it could have been avoided had some other technology or procedure was used. Another way through which harm to the patient can occur is through an adverse event. This follows that a medical intervention was carried out but it was not preventable; this means that the occurrence is a result of medical management and there is no known cause of preventing the adverse event from happening. Lastly a person may sustain injury due to his or her medical condition, and error plays no role in such cases. This classification of the ways injuries can occur to the patient helps to establish the fact that not all adverse events can be prevented. Furthermore, a statement that a particular event can be preventable does not always mean that it needs to be prevented. From the perspective of economics, it can be argued that scarce resources should not be invested completely to avoid all preventable errors. The judgment as to which event needs to be prevented is dependent on the severity of the results of the event. For instance, closing off a ward for the preventing the spread of a mild infection is not advisable. The health benefits gained from preventing such adverse events are not worth the resource allocation e.g. the usage of machines and money in closing off the ward, since it would be too expensive. Errors can be classified into active and latent errors. The impact of the active error is felt immediately and they occur at the frontline operator. On the other hand, latent errors do not occur at the frontline; rather they are the result of faulty installation, poor design etc. From studies conducted on the occurrence of medical errors at health care institutions, it is generally deduced that approximately 60% of adverse events are due to error, of which half of them are due to negligence. The rest of the 40% adverse events occur due to other factors excluding failures in execution or planning. Thus, the 60% of adverse events can be preventable. Errors can damage the health of the patient, and tort laws have been passed to encourage physicians to avoid error. The tort process allows patients to sue doctors and the hospitals in the court for acts of negligence (Towse et al. 2003). In the UK alone, there are reportedly 300,000 to 1.4million adverse events cases in the hospitals with a cost as high as £2 billion. Research studies conducted on the pattern of occurrence of adverse events suggests that they occur as a result of complex relationships between human behavior, technology, socio-cultural factors and myriad of other organizational weaknesses. However, the blame of the adverse event is often put on the physician in charge. Physicians are liable if they are subjected to a negligence rule of liability (Danzon 2000). Tort laws exist to protect the “interests of people in their property and persons from damage by others” (Cooter & Ulen 2000). If there were no laws or any binding by court for doctors to avoid error, there would have been an abundance of accidents occurring. For the purpose of achieving efficiency in one’s performance, the health care provider should aim to provide a socially optimal level of care which results in a socially optimal level of injuries. Courts enforce such laws through many ways. One way of doing this is through enforcement of certain standards that are required for the optimal choice of care; not adhering to these standards makes the person subject to the negligence rule. This refers to the legal standard of care, which is considered as the legal right of the victims. Medical negligence is defined the act or lapse in the treatment of patient by a medical practitioner, which does not fall on the standard level of care (Medical Negligence 2010). The courts make the negligence rule efficient by assessing the complete cost of harm inflicted to the victim, and making these costs as the penalty to pay by the injurer. Moreover, the negligence rule makes the assumption that courts are able to estimate the complete costs of the harm inflicted, as well as propose the recommended level of care. On the other hand, strict liability is one where the injurer is made to pay for the damages inflicted, regardless of the amount of care that has been provided. The courts assimilate and estimate the full cost of harm that has been rendered, as well as enforce the charges on the injurer. As a result, the injurer decides upon a level of care that he or she has to provide in daily life. This also serves to be the advantage of strict liability. The difference between strict liability and negligence rule is that in negligence rule, courts assess the efficiency of the care provided, whereas in strict liability, the full cost of the harm is assessed. No fault regime is one in which the clients are insured without putting any blame on them. Therefore they are also known as no blame compensatory regimes (Organisation for Economic Co-operation and Development 2006). The characteristic of no fault rule is that the injurer has to pay for the damages, no matter how careful the individual had been. There is no proof for the fault required and the victim receives automatic recovery (Magnus, Martín-Casals & Boom 2004). Under the no fault regime, the claimant has to show that he or she has suffered an injury but there is no requirement to specify as to who is responsible for that fault. The victim is compensated via first-party insurance coverage (Kaplow & Shavell 2002). Therefore a no fault regime is similar to a strict liability since the claimant does not have to be particular about whose fault it is. However, in strict liability, the court determines whether the costs of the harm, but in no fault, bodies other than the court, such as a panel, are required to make an evaluation of the costs of the damage. Laws are essential for regulating the standard of care being delivered. If there are now laws present, then the care provider would not be interested in maintaining the level of care that he or she provides. It is necessary for words to be put into binding for them to be followed (Honoré 1995). Negligence requires that a breach of duty has occurred; the phenomenon of causation is thus applicable to negligence. This means that for an act to be considered as an act of negligence, the injury should have been the result of the breach. In the UK alone, the National Health Service has spent millions of pounds in compensating the damage caused during medical procedures. Compensation is offered if the patient can establish that negligence was done on the part of the care provider during the course of medical treatment. Nevertheless, the process of compensating injured patients has cost the government lots of money (Fenn, Gray, & Rickman 2004). Therefore, in countries such as some states in the US, Sweden and New Zealand, there have been reforms in tort law. In such countries, a no fault approach has been enforced. As a result, there has been immense debate in policy circles regarding the reform of the tort law in the UK as well. The negligence rule is taken up to file a legal claim against the alleged party, be it a medical practitioner or the hospital. For the claimant to present his or her case, he or she has to establish that the alleged party has been at fault; in other terms, the claimant has to prove that a tort of clinical negligence has occurred. In negligence the wrong-doer has to pay for the losses caused (Edwards, Edwards & Wells 2008). The difference between negligence and no fault regime lies in the context in which the claimant has to establish the claim. If the claimant is proving that the alleged party has caused a certain injury, he or she is filing a legal claim under the no fault regime. As a result, there is no requirement to prove the negligence of the medical practitioner. Therefore, no fault regimes are generally considered to be less demanding in terms of costs. The excluded need to prove the negligence of the physician makes the no fault regime lower in terms of administrative costs (Fenn, Gray, & Rickman 2004). The conflicting characteristics of the no fault regime and the negligence rule results in a number of identifiable repercussions. One of the most debatable consequences of these characteristics is that the injurer is sometimes benefited in negligence rule while no fault regime spares no benefit to the injurer. Under the negligence claim, if the injurer has taken care effectively, then the victim has to bear all the losses. However, the no fault regime follows that the injurer has to pay for all the losses, regardless of what the court decides about the care that the injurer had provided during the alleged medical procedure (Fenn, Gray, & Rickman 2004). In order to determine whether negligence liability is better for the management of medical error or no fault regime, it is necessary to discuss the attributes of the two processes from the perspective of the associated costs and the efficiency of the procedure (Fenn, Gray, & Rickman 2004). The debates that have been raised with regard to the negligence tort system in the UK have been based on the lack of the efficiency of the process. It has been argued that negligence has not been able to provide just compensation or it has played no role in making doctors consider the risk of claims and to work to maintain a standard of care. The accountancy bodies in the UK, such as the National Audit Office (NAO) and the House of Commons Public Accounts Committee (PAC), have advised the government to bring changes in the current system of fault rule. The reasons for reform have been outlined in terms of the costs and efficiency output of the current system. The tort of negligence system has shown to be costly to the NHS. This is primarily because of the higher costs of administration associated with proving that the medical practitioner has been at fault. Furthermore, the system of fault has caused extensive delays on patients who are looking for redress (Fenn, Gray, & Rickman 2004). The system is also inefficient since the administrative and legal costs of the cases often tend to exceed the cost of the damage that has been claimed for (Fenn, Gray, & Rickman 2004). The system also does not deter het medical practitioner from committing error. This is partly due to the fact that the system promotes a culture of secrecy and discretion, in which the colleagues cover-up the bad practices of each other (Fenn, Gray, & Rickman 2004). As a result the system becomes unfavorable to the encouragement and enforcement of an efficient standard of care. The statistics that have been obtained regarding compensatory charges in the UK are reflective of the inefficiency and the high costs of the system. In the year 2000/01, the total NHS provisions for the future settlement of negligence claims were estimated to be around £4.4 billion. Moreover, the average time that was needed to resolve a total of 23,000 cases at the end of March 2000 was approximated to be about five years. This estimation did not include the complicated cases, which required more than 5 years for settlement. Another statistic that proved that the system is not functioning effectively was that for 65% of the settlements below £50,000, the legal and administrative costs of the case were greater than the associated cost of damage (Fenn, Gray, & Rickman 2004). Statistics for the administrative costs of compensatory claims in Florida, Utah etc are also buttressing the fact that the administrative costs of no fault schemes are much lower than their negligence tort counterpart. It has been proposed that the administrative costs are 30% per claim dollar for no fault regimes as compared to 55% for tort in the US. Moreover, research conducted on the costs of no fault schemes has also shown that the costs of no fault resemble fixed costs. This means that the cost to damage ratio decreases as the value of the case increases (Fenn, Gray, & Rickman 2004). There is an increase in the number of debates being fueled over the negligence legislation used to deal with medical injuries (Danzon 1994). Data collected from countries other than the UK is also representative of the increased preference for a no fault system. Agencies are disenchanted with the tort system in the US (Kachalia, Mello, Brennan & Studdert 2008). The no fault regimes are seen to cater more for compensatory damages to the patient than negligence rules. Despite that, a small percentage of cases are rejected under the no fault regime and the negligence system (Fenn, Gray, & Rickman 2004). Although no fault regimes are able to compensate for a large number of cases at the same time, they are seen to be subject to a high potential cost. This can be inferred from the fact that in New Zealand, there was a marked increase in the costs of the Accident Compensation Scheme. The nominal costs increased by 20% each year between 1975 and 1989. Therefore, when making laws for the management of medical error, policy makers have to take into consideration the costs and the coverage of the proposed options. Costs can be decreased by changing the severity of the injuries that are considered as eligible for compensation. Another way for managing the costs and the coverage, and for striking a balance between them, is through the analysis of what qualifies as error-based injuries. Between the 1970s and the 1980s, the costs of injuries rose greatly in Sweden and New Zealand. Consequently, the governments of these countries changed the definition of injuries that are to be eligible for compensation by increasing the criteria for it. This means that the fault factor was reintroduced in the countries. For instance, in Sweden, a claimant was considered to be eligible for filing a claim if the error occurred with “substantial probability” as a direct result of clinical error, or if the treatment was not indicated medically or some other procedure could have been used that would have prevented the injury from occurring (Fenn, Gray, & Rickman 2004). Therefore, Fenn, Gray and Rickman (2004) observe that it is difficult to devise a comprehensive scheme for compensation without taking medical error into account. The drawback of no fault schemes is that they may be subject to a fall in the performance of the medical practitioner. The health care provider would not be motivated to engage in acts of deterrence from performing error. An effective approach for achieving a certain level of deterrence in the practice of the medical practitioners is through the process of separation of deterrence and compensation. By following the typical compensation regime, there are lower costs conferred to the government in case of medical errors. However, since there is a separate system for the regulation and supervision of the medical practitioners, there is a check on them that would prevent them from taking deterrence lightly. For instance, such a system of compensation and deterrence is followed in Sweden. The Medical Responsibility Board has the duty to regulate the performance of the clinicians; however the Board is not involved if a claim has been filed against the clinician. There are reported costs of maintaining a separate Board for the purpose of regulation of the conduct of the clinicians. However it can be argued that the costs of the decoupling of compensation from deterrence, while enforcing a no fault regime, can be overlooked (Fenn, Gray, & Rickman 2004). There are obvious benefits of moving from a fault-based system to a non fault regime. The consequence of such an act would be that more people will be able to get compensation, as there would be lesser waiting periods. Another recognizable advantage is that greater insight can be gained about the accidents and errors that can occur on part of the doctor. The transition to a no fault regime would also mean that there would be an appreciable increase in the efficiency of the compensations program, particularly when the government is dealing with smaller claims. Therefore, to answer the question whether no fault regime is better than a negligence tort for the management of medical error, a composite model can be proposed. The no fault scheme has its obvious advantages over negligence, but there are greater chances that the clinicians do not feel the need to incorporate deterrence in their professional conduct. Therefore, the model that can fit the health system of a country is one that takes up a no fault approach, yet makes the clinicians accountable for the effects of error. The deterrent effects of compensation can be maintained through a number ways, one of which is the establishment of a separate board or regulatory authority for keeping a check on the conduct of the medical practitioners. Reference List Cooter R & Ulen T 2000, Law and Economics, 3rd edn, Addison-Wesley. Danzon, P 1994, ‘Tort reform: the case of medical malpractice’, Oxford Review of Economic Policy, no.10, pp. 84-98. 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