Elsevier

Social Science & Medicine

Volume 66, Issue 2, January 2008, Pages 387-402
Social Science & Medicine

Beyond negligence: Avoidability and medical injury compensation

https://doi.org/10.1016/j.socscimed.2007.08.020Get rights and content

Abstract

Disenchantment with the tort system and negligence standard in the United States is fueling interest in alternate compensation systems for medical injury. One possibility is experimentation with administrative “health courts,” through which specialized adjudicators would utilize neutral experts to render compensability determinations. Compensation would be based not on negligence, but rather on a broader avoidable medical injury (avoidability) standard. Although considerable interest in health courts exists, stakeholders frequently express uncertainty about the meaning and operation of an avoidability standard.

Three nations—Sweden, Denmark, and New Zealand—have long operated administrative schemes. We conducted interviews with administrators and stakeholders in these systems. Our goal was to garner lessons on how to operate a health court, and specifically, how to develop and apply alternate compensation criteria such as avoidability. This article reports our findings on the origins and operations of the systems, the evolution of their compensation criteria, and how these criteria are actually applied.

We found that all three systems had their primary genesis in ensuring compensation for the injured, as opposed to sanctioning providers. All have abandoned the negligence standard. The Nordic systems use an avoidability standard, principally defined as injury that would not occur in the hands of the best practitioner. Their experience demonstrates that this definition is feasible to apply. New Zealand's recent move to a no-fault system sheds light on the benefits and drawbacks of a variety of compensation standards.

Key lessons for successfully applying an alternate standard, such as avoidability, include a strict adherence to national precedent, the use of neutral and experienced experts, and a block on routine transfer of information from compensation investigations to disciplinary authorities. Importantly, all three nations are harnessing their systems’ power to improve patient safety, and the avoidability standard appears to be well suited for this task.

Introduction

The recent “crisis” in the United States malpractice medical insurance market has highlighted the problem of high and rising medical liability costs, and has also deepened the policy concerns about the malpractice system's ultimate effect on the quality of care (Annas, 2006; Sage, 2003). Policy discussions about how to resolve these perennial problems are being influenced by a growing awareness that traditional tort reform measures, such as caps on non-economic damages, will not solve them (Mello, 2006; Thorpe, 2004). There is also increasing recognition that such measures do little or nothing to make care safer (Clinton & Obama, 2006). Scholars and policymakers, much as they did in the wake of tort crises in the mid-1970s and -1980s, are again turning their attention to options for more fundamental reform (Mello, Studdert, Kachalia, & Brennan, 2006).

Among those options is the prospect of an administrative approach to medical injury compensation. Proposals for administrative compensation systems are not new, but have been reshaped over the last 30 years. The latest incarnation is the “health court” model, which is currently garnering interest in state and federal policy circles (Medical Errors Subcommittee of the Wyoming Health Care Commission, 2005). Health courts are state-run administrative tribunals that use specialized judges and neutral expert witnesses to adjudicate medical injury compensation claims. We and other proponents of this approach believe that health courts promise more prompt, fair, efficient, accurate, and predictable compensation (Mello et al., 2006).

We have described the proposed structure of health courts in detail elsewhere (Mello et al., 2006). Here we elaborate on a cornerstone of their design: the use of an “avoidability” standard instead of negligence to determine which injuries are eligible for compensation. The concept of avoidability offers an alternative that resides between negligence and strict liability. A system based on an avoidability standard would award compensation to claimants who could show that their injury would not have occurred in the hands of the best practitioner or system.

Policymakers considering proposals for an avoidability-based compensation system have raised many questions about the concept: How, in practical terms, does avoidability differ from negligence? Is it reasonable to expect that an administrative model can operationalize the concept of avoidability in a way that advances the objectives of speed, fairness, efficiency, accuracy, and predictability? What evidence suggests that it is a workable standard?

Fortunately, real-world experience to help answer these critical questions is at hand. New Zealand and the Scandinavian countries have compensated medical injury through non-negligence-based administrative compensation schemes for decades.(Dute, Faure, & Koziol, 2004) In 2005, we conducted site visits to New Zealand, Sweden, and Denmark to interview administrators and stakeholders of these schemes. In this article, we report findings from our interviews with 44 administrators, medical experts who help decide coverage eligibility questions, and stakeholder group representatives, and consider key lessons learned for the operation of an avoidability-based compensation system in the United States.

Section snippets

Origins and objectives

Each of the Nordic countries—Sweden, Denmark, Norway, Finland, and Iceland—have abandoned their negligence-based compensation systems at different times over the last 30 years (Iceland Ministry of Health and Social Security: Laws and Regulations, 2006; Norsk Pasientskadeerstatning: About the Norwegian System of Compensation to Patients, 2006; Patientförsäkringsföreningen: The Patient Injury Act, 2006; Patientforsikringen: The Danish Patient Insurance Act, 2006; Potilasvakuutuskeskus, The

Compensating avoidable injury

The criteria used to determine whether a claim is compensable are a central feature of the schemes in Scandinavia and New Zealand. These criteria help determine the schemes’ viability by influencing the pool of eligible claims, the volume of claims received, the costs of resolving claims, and, ultimately, the aggregate costs of a compensation system. In this section, we describe the compensation criteria these three schemes use, including the criteria definitions and how they are

Lessons for testing a new compensation standard in the United States

Our review of medical injury compensation systems and standards in Sweden, Denmark, and New Zealand gives rise to several observations that may help inform consideration of health courts—and other approaches to compensation that do not turn on the concept of negligence—in countries like the United States where such approaches would entail fairly dramatic changes to the status quo.

Conclusion

As United States policymakers consider proposals for health court pilots, they will continue to ask hard questions about the feasibility and wisdom of an alternative system. Some of those questions—about the legality and costs of a health court scheme, for instance—have yet to be definitively answered. But the experience of foreign medical injury compensation systems provides useful information about one key question: whether it is feasible to operate a system that bases compensation decisions

Acknowledgement

We would like thank everyone in New Zealand, Sweden, and Denmark that took the time to talk with us about their compensation systems. We wish to extend a special thank you to Kim Eland, Rachel Taylor, Cathy Scott, and David Collins in New Zealand; Carl Espersson, Kaj Essinger, Lena Mansnérus, Louise Djurberg, and Sten Friberg in Sweden; and Martin Erichsen and Ole Graugaard in Denmark and for making our visits such a wonderful and fruitful experience.

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