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

3230 Words Apr 21st, 2013 13 Pages
‘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
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Negligence nevertheless, is not without its flaws. In theory, ‘doctors balance expectations about the social benefits of medical care, the costs of precaution, and the costs of negligence’ (Kessler et al, 2006, p.240). However it has been argued that fear of litigation leads doctors to practice defensive medicine, which Kessler et al suggest can take two forms: ‘Positive defensive medicine includes the supply of care that is unproductive for patients; negative defensive medicine takes place when providers decline to supply care that is productive for patients’ (2006, p.241). This implies that doctors can ‘over-care’ for their patients, by ordering unnecessary tests, prescribing unnecessary medicine or keeping patients longer than required; or even avoid certain procedures over concerns regarding risk; which can prove costly and inefficient, and affect the level of care patients receive. Summerton notes ‘defensive medicine has consequences for the public health not only in terms of the quality of individual care but also in relation to the utilisation of limited health resources’ (1995, p.27). Furthermore, based on research into the level of defensive medicine amongst general practitioners, Summerton found that ‘Some 98% of general practitioners claim to be making

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