Compensation as a duty of care: the case for “no fault”
- Smith & Nephew Foundation Professor of Clinical Safety Research, Department of Surgical Oncology and Technology, Imperial College School of Science, Technology and Medicine, St Mary’s Hospital Campus, London W2 1NY, UK; firstname.lastname@example.org
An optimal compensation system should compensate injuries when they occur, but also reduce errors and harm. The tort system used in most countries is increasingly anachronistic and an obstacle to progress on patient safety. A “no fault” system of compensation such as that used in New Zealand may result in better quality of care.
Retrospective medical record reviews suggest that 4–16% of hospitalised patients suffer harm, which is judged preventable in about half of cases. In the study by Davis et al1 published in this issue of QSHC, 5.2% of admissions in New Zealand led to a preventable in-hospital event, a similar rate to that in the UK and within the broad range of other studies. Clearly these results are important for New Zealand health care, but they also have a special significance because of New Zealand’s “no fault” compensation system. To understand this it is necessary briefly to consider the basis and justification for different approaches to compensation for medical injury.
In most countries compensation for medical injury is based on the tort system or other “fault based” models. The claimant—the injured patient—must take legal action to prove duty of care, injury, causation, and negligence. In a “no fault” compensation system an expert panel will assess whether the injury has indeed been caused by health care, but the patient does not have to go to court and does not have to prove negligence in order to be eligible for compensation. Most “no fault” systems do not compensate all injuries from health care. For instance, the New Zealand system …