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New Zealand's no-fault approach to medical injury cases has the potential to prevent such injuries in the future

The highly punitive approach of medical malpractice suits in the United States, which rests on pinpointing who is at fault in a medical injury case, frustrates efforts to understand and prevent medical errors. In contrast, New Zealand channels compensation to victims of medical injury through a no-fault scheme in cases that typically are settled in a few months.

A no-fault system can avoid the sort of punitive environment that chills openness and data gathering in tort-based compensation schemes. Moreover, the wide range of injuries that come within the purview of no-fault systems offers a unique window on the root causes of medical error, explain Julie Fitzjohn of New Zealand's Christchurch School of Medicine, and David Studdert, Sc.D., of the Harvard School of Public Health, in a recent commentary. Their work was supported in part by the Agency for Healthcare Research and Quality (HS11285)

Like Sweden's system, the New Zealand system first seeks to determine whether medical management in fact caused the injury that prompted the claim. Immediate compensation is provided in cases where it is determined that substandard or inappropriate treatment led to the injury. Severity of injury is based on time spent in the hospital or with significant disability. However, the third step in Sweden is to determine whether the injury was avoidable with optimal care, while New Zealand focuses on whether the injury was rare (a medical mishap).

Reform of New Zealand's compensation criteria for medical injury to embrace the notion of avoidability or preventability would help to realize the system's potential to identify and uncover the root causes of medical injury, assert the authors. The current "medical error" test in New Zealand's compensation criteria clearly targets individual errors rather than system failures that potentially can be prevented. Clearly, a shift to preventability criteria will pose some challenges. For example, it will take time to establish workable definitions of preventable events and consistent determinations about which injuries are compensable.

More details are in "A compensation perspective on error prevention: Is the ACC medical misadventure scheme compensating the right sort of injury?" by Ms. Fitzjohn and Dr. Studdert, in the September 2001 New Zealand Medical Journal 114 (1140), pp. 432-434, 2001.

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