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Medical Liability

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No-fault approaches to medical injury may improve care quality over the current malpractice litigation environment

Leading proposals to improve patient safety focus on systems approaches to reducing errors and improved tracking of incidents, which evidence suggests usually involves more than one person's oversight or mistake. However, these approaches call for candor among health care practitioners about the causes and consequences of medical injury. This is difficult for clinicians to do in the present medical malpractice environment, where admitting personal blame makes them vulnerable to lawsuits.

Harvard School of Public Health researchers, David M. Studdert, L.L.B., Sc.D., M.P.H., and Troyen A. Brennan, M.D., J.D., M.P.H., describe an alternative to litigation that does not predicate patient compensation on proof of practitioner fault. This would make it easier for health care providers to identify and correct medical errors. The researchers propose a no-fault system of compensation based on enterprise liability, which is similar to workers' compensation schemes in most States, and it is used in health care systems in countries such as Sweden.

Enterprise liability means that individuals (such as physicians) do not directly bear the costs associated with an injury. Instead, the enterprise—whether it be a large group practice, hospital, or health plan—would be "strictly liable" by meeting the costs of liability premiums for all affiliated staff. Premium levels could then be experience-rated. For instance, a hospital would pay more in a given year if there was a rash of avoidable injuries and less if quality improvement initiatives curtailed the incidence of such events. Enterprise liability can effectively target financial incentives at institutions, even specific processes within institutions, according to the researchers.

Drs. Studdert and Brennan point out that most hospitals and doctors are not prepared for a rapid shift to a no-fault model, much less enterprise liability. Rather than wholesale replacement of the tort system with a no-fault system, they advocate enabling legislation at the State level that would allow selected organizations to experiment with no-fault/enterprise liability models. They note that such laws would probably survive the sort of legal challenges that originally confronted workers' compensation schemes and no-fault auto insurance. Dr. Studdert's work was supported by the Agency for Healthcare Research and Quality (KO2 HS11285).

More details are in "No-fault compensation for medical injuries: The prospect for error prevention," by Drs. Studdert and Brennan, in the July 11, 2001 Journal of the American Medical Association 286(2), pp. 217-223.

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