Introduction
Risks cannot be avoided when providing health care. Certain medical procedures have resulted in the death of a patient, despite the care and the degree of accuracy used in performing them. Certain drugs have caused negative effects in patients when the diagnosis and administration were done correctly. Certain types of errors that cause injuries in patients can be prevented; however, not all these medical errors are caused by negligence emanating from medical practitioners.
Studies in the United States have indicated that only sixty percent of patients’ injuries are caused by medical errors. A half of these cases can be attributed to negligence, and forty percent of medical injuries are caused by patient-based conditions. Owing to this, a compensation system that adequately compensates patients and does not victimize medical practitioners needs to be put in place (McEwin 735).
No-Fault Compensation for Medical Injuries
No-Fault compensation for medical injuries is increasingly becoming a popular compensation scheme and has replaced the tort system as the most preferred compensation for medical injuries. No-Fault compensation systems normally eliminate the requirement of proving that negligence occurred during treatment for one to be compensated. However, most No-Fault schemes still incorporate tests of avoidability and causation for compensations to be made. Proponents of no-fault compensation have favored it because this compensation scheme provides fair and faster compensation of injuries incurred during treatment, as opposed to tort litigation.
In addition, it has been argued that a no-fault compensation scheme provides compensation to many victims as compared to another compensation scheme. Proponents of the no-fault medical scheme also argue that this system provides a chance for proper investigations of the real cause of medical injuries, without employing defensiveness common under the tort system. However, some proponents have maintained that a no-fault system reduces accountability on the part of medical practitioners (Farrell, Devaney, and Dar 10).
The main arguments for those favoring the no-fault compensation for medical injuries include speed in resolving cases of medical injuries. This is achieved by eliminating the requirement that negligence on the part of a medical practitioner should be proved for compensation to be made. The legal and administrative cost of a no-fault compensation scheme is generally lower as compared to other systems of medical injury compensation. In no-fault compensation schemes, the criteria for eligibility is widened, which enables increased access to legal redress for patients who have been victims of medical injuries. This is contrary to the tort system whereby for a patient to access legal redress, he or she would have to prove that clinical negligence occurred (Farrell, Devaney, and Dar 11).
Proponents of the no-fault scheme also favor it on the basis that this scheme will eliminate conflicts between patients who have sustained injuries during treatment and medical practitioners. The tort-based system according to these proponents propagates a blame culture. Elimination of this blame culture will encourage medical practitioners to be apologetic and open about the medical errors they make. From a legal perspective, solicitors are normally responsible for handling legal costs on behalf of patients suing for compensation. The legal costs under a tort-based system normally surpass the amount issued to the patient as compensation. No-fault-based compensation schemes reduce the legal and administrative costs incurred in processing compensation. Hence, a no-fault system has the potential of shielding patients from unnecessary legal costs (Australian Department of Health 107).
A no-fault system also increases the likelihood of patients who sues for medical injuries receiving compensation. This opinion by proponents of this system is based on the shortcomings of the tort system. The tort system requires that a patient proves that the injury was a result of medical negligence. This has led to a situation whereby patients who suffer injuries while undergoing treatment, fail to be compensated at all, or if compensated, the compensation is often inadequate. In a no-fault scheme, the patient claiming compensation needs to show that a medical error is a factor responsible for his or her injury, regardless of who performed it. Hence, the patients are not required to prove who is responsible for the injury; whether it is the hospital or the medical officer (Australian Department of Health 108).
Proponents of a no-fault compensation scheme have favored it arguing that the tort system based on negligence, only awards compensation to a small proportion of patients who sustain injuries (Fenn, Gray, and Rickman 272). Statistics in the UK indicate that every year approximately four hundred and fifty thousand patients receiving care from NHS hospitals sustain injuries. Sixty-three thousand of these injuries result in fatality. Two hundred and seventy thousand of these injuries could have been avoided, while one hundred and thirty-five cases were due to negligence. The tort system cannot effectively address this situation according to its opponents.
The tort system requires proof of negligence for compensation to be awarded, and if negligence is proved, the medical practitioner involved bears the blame. This deters medical practitioners from reporting their errors making the prevention of future incidents impossible (Studdert, Mello, and Gawande 2025).
In the event a patient sustains serious injuries, the no-fault system ensures that the rehabilitation of the patient commences promptly. This is because this system eliminates the lengthy legal battles found in the tort system, which can delay the treatment of an injured patient. A no-fault system also provides certain advantages to health practitioners. These advantages include reducing the pressure on health workers caused by the ever-increasing insurance premiums, threats of litigation, and the availability of liability (Studdert, Mello, and Gawande 2025).
One of the arguments put forward by the opponents of the no-fault system is that the system would be expensive compared to tort due to an increase in the overall cost. This will be brought by an increase in the number of people filing for a medical injury claim. This in turn can lead to a situation whereby the amount awarded to individuals as compensation is reduced to tame the cost. The uncompensated individuals in this scheme would then create a burden to the state’s medical insurance system.
Opponents of no-fault-based compensation schemes argue that although the system will eliminate disputes brought by negligence, the requirements that the injury is caused by a medical procedure will continue to cause disputes. The challenges encountered in trying to establish that the injury was caused by a medical injury, will prevent many patients from accessing justice and this scheme (Studdert and Brennan 218).
Those who oppose this system also argue that this system will make it difficult to differentiate the natural progression of an ailment, from a medical error. Patients could easily claim that the worsening of their condition is a result of the treatment they received because this compensation system does not require proof of negligence. No-fault schemes are normally established fixed tariffs or amounts. Opponents of this system have argued that fixed amounts or tariffs are not adequate to take care of the needs of people suffering from medical injuries. In addition, the nature and adversity of medical injuries normally vary and therefore cannot be compensated by fixed amounts.
No-faults schemes have generally been seen as disadvantageous because they eliminate accountability on the part of medical practitioners about the standards of medical care they offer. This is because the no-fault system eliminates the threat of litigation that compels hospitals and health practitioners to desist from unsafe medical practices, which can cause injuries to the patient (Studdert and Brennan 219).
Critics of no-fault compensation schemes have also maintained that these systems are only efficient in providing compensation to injured patients only if a well-funded social security scheme exists in a country. They also add that the significant upsurge in the number of individuals receiving compensation under this scheme has the potential of creating a compensation culture. People who suffer medical injuries while undergoing treatment are not assured of a comprehensive explanation and apology from medical practitioners under this scheme. Opponents of no-fault system of compensation also argue that there is no concrete evidence indicating that hospitals and medical practitioners would learn from the errors they make if they are absolved from blame through no-fault schemes (Towse, Fenn, and Grey 2).
The potential of no-fault schemes to cover a wider proportion of the population due to its inclusive eligibility criteria has been dismissed by its opponents. The opponents claim that the existing no-fault schemes have had a considerable number of patient rejections due to failure to meet criteria for eligibility. Patient injury compensation scheme based on no-fault system, do not necessarily address all the grievances raised by injured patients. This is because these schemes to not guarantee apologies, accountability by health practitioners, and detailed explanations to patients concerning the causes of their injuries (Gaine 997).
The above arguments provide positive and negative views concerning no-fault schemes; however, there are certain aspects of no-fault schemes that make them worth considering. No-fault schemes provide equity coverage to patients who have sustained injuries while undergoing treatment. Although the nature and severity of these injuries normally vary, and no-fault schemes may not accurately consider them, but these schemes ensure that all claimants are compensated in time.
Moreover, no-fault schemes can always vary in terms of the extent of injuries the scheme is willing to cover. There is also a general agreement that administrative costs incurred in no-fault schemes are significantly lower compared to the costs and legal aspects of tort based schemes. The affordability which has been the major concern of the opponents of no-fault systems can be achieved through institutional and financial reforms (Hyman and Silver 1085).
Another important point worth noting about no-fault systems of compensation is that they ensure many injured patients access justice. Critics of no-fault schemes have often cited the greater access to justice and compensation under this scheme as a potential recipe for compensation culture. However, studies in countries where no-fault schemes have been introduced such as New Zealand have indicated that there is an under-claim in this system. People who are likely to rely on no-fault schemes after a medical injury are the elderly, ethnic minorities and the economically disadvantaged (Mello, Studdert, and Thomas 837).
Works Cited
Australian Department of Health. “Making Amends: A Consultation Paper Setting Out Proposals for Reforming the Approach to Clinical Negligence in the NHS.” Department of Health 1.1 (2003): 1-28. Print.
Fenn, Paul, Alastair Gray, and Neil Rickman. “The Economics of Clinical Negligence Reform in England.” The Economic Journal 114.1 (2004): 272–292. Print.
Farrell, Anne-Maree, Sarah Devaney, and Amber Dar. “No-Fault Compensation Schemes for Medical Injury: A Review.” Scottish Government Social Research 1.1 (2010): 1-85. Print.
Gaine, William. “No-fault Compensation Systems: Experience Elsewhere Suggests It Is Time for the UK to Introduce a Pilot Scheme.” British Medical Journal 10.326 (2003): 997–998. Print.
Hyman, David and Charles Silver. “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid.” Vanderbilt Law Review 59.4 (2006): 1085-1136. Print.
Mello, Michelle, David Studdert, and Eric Thomas. “Who Pays for Medical Errors? An Analysis of Adverse Event Costs, the Medical Liability System, and Incentives for Patient Safety Improvement.” Journal of Empirical Legal Studies 4.4 (2007): 835–860. Print.
McEwin, RI. No-Fault Compensation Systems. Sydney: Case Associates, 1999. Print.
Studdert, David, Michelle Mello, and Atul Gawande. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” The New England Journal of Medicine 354.33 (2006): 2024-2033. Print.
Studdert, David and Troyen Brennan. “No-Fault Compensation for Medical Injuries the Prospect for Error Prevention.” Health Law and Ethics 286.2 (2001): 217-223. Print.
Towse, Adrian, Paul Fenn and Alastair Grey. Reducing Harm to Patients in the National Health Service. “Will the Government’s compensation proposals help?” ohe. NHS. 2003. Web.