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Medical injury, patients' claims and the effects of government responses in Anglo–American legal systems
  1. Edward A Dauer
  1. Correspondence to Professor Edward A Dauer, 127 South Garfield Street, Denver, CO 80209/ California Western School of Law, San Diego CA: edauer{at}

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Almost no one is happy with malpractice liability, the traditional Anglo–American system for dealing with complaints about medical injury. To its more trenchant critics it is inefficient, ineffective, inaccurate and, what matters most, it is structurally inconsistent with the fundaments of quality improvement and future patient safety.1 It is, in all, something only a trial lawyer could love.2 3

Efforts at reform are in place almost everywhere. New Zealand has effectively barred malpractice litigation entirely4; Australia has curbed it by offering parallel, commission-based procedures5; Canada and England have relatively lower claiming rates due to disincentives built into law and insurance practices6; while in the USA the process remains troublesome. Many hospitals and some liability insurers have initiated disclosure and early intervention programs to prevent disappointments from turning into legal claims,7 but the legal environment in the USA remains largely unchanged. Some states in the USA limit recoveries through the imposition of ‘caps’ on damages such as ‘pain and suffering’, but more fundamental reforms are few.8

Dissatisfaction with the process among patients is particularly notable. Traditional litigation provides only money, and then only infrequently, slowly and at considerable emotional and psychological expense. Injured patients, however, report the need for other things9 10: restoration (more broadly than cash); sanction (accountability for erring providers); communication (disclosure, explanation, apology); and, perhaps most significantly, correction (steps taken to assure the error is not repeated).11 Money is a poor surrogate for these other concerns. Australia and New Zealand have responded to that fact by creating health complaint commissions, agencies empowered to deliver a broader and more responsive array of remedies. Many of us in the USA who are considering the shape of comprehensive reforms there have been looking at these models for inspiration …

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