Essay: Medical negligence

Medical negligence begins with an injury or an adverse outcome to a patient occurring during medical care. When such events occur patients and families suffer from emotional and financial burden and attempt to seek compensation for their economic/ medical costs and pain and suffering. The injuries and outcomes that occur however do not always result from malpractice or substandard of care and this is where Tort compensation systems arise, that further observe the nature of the medical injury; some being physician or hospital negligence or medical errors and some are result of nature of care. For this reason, not all injuries receive compensation.
Compensation systems currently operating globally and how they deal with negligence
Globally, there are two main negligence systems, adopted by few developed countries. These include Tort Compensation System or Litigation based primarily on the element of negligence in contrast to the “no-fault system’ which retains the proof of negligence, but compensation is based on proof of “causal” connection between treatment and injury. Both providing evident strengths and weaknesses in effectively compensating. A no-fault compensation scheme is where accidents and injuries are regarded as inevitable and the emphasis lies primarily on compensating victims for related expenses. When looking however specifically at negligence claims and issues arising from cosmetic surgery errors, it is important to look at possible reforms that will attempt to make compensation more readily available as it is difficult to prove negligence in such a high risk area of the medical system with physical alterations being the main element. Cosmetic surgery is a highly skilled area of medical practice and there are evident risks involved with all surgeries. Despite the standard of care being very high especially in Australia, there are always possible things that may go wrong and this is where compensation for those medical and economic losses are crucial. Specifically, when these errors occur whether or not negligence is an element. In the current system of Tort compensation where negligence is a main factor, it must therefore be proven that in making the surgical mistake, the medical practitioner did not exercise the reasonable skill or expertise of a medical practitioner in their position. Furthermore, it must be proven the error caused harm or injury to the patient, beyond the underlying condition the patient was being treated for.
The understanding of the IPP report
Beyond the implementation of the tort compensation systems and “no-fault” compensation, the IPP report was enacted to propose a potential act that would apply to any claim for damages for personal injury or death resulting from negligence regardless of where the claim is brought in any cause of action. The recommendations continue regarding treatment by a medical practitioner, standard of care, and duties to inform. Tort compensation system sets a regulatory base for people to seek compensation for an adverse outcome caused by the negligent behaviour of other parties. A person can be only held liable for negligence where they have failed to perform the standard of care which the law requires them to observe. Thus, in this legal system injury has confers no legal right and negligence is not liability alone. After negligence is established, the law offers the patient a private, judicially enforced remedy. Monetary amounts are usually intended to compensate patients or their families for their losses and to deter negligent behaviour by threatening providers to pay for damages. In contrast, “no-fault” system created a way that it was needed to base compensation on more objective grounds than possible through tort law.
Critique of the law of negligence and compensation systems
An important element to critique the law of negligence and the system of compensation is the way it incorporates disability jurisprudence. The tort system itself has a role in negatising and emphasising ‘disability’ rather than simply encouraging a broader social responsibility to change the perspective and views on what impact it really has on medical liability if any. It is the common knowledge that within the current tort system disabilities are treated different, some compensated more substantially than others with little benefits. The no-fault system enables the incorporation of a societal view that removes the stigmatism and places disability at the same level with a more positive understanding and inclusion. It is also difficult through the current system to provide the claimant with enough damages to cover the long-term costs of care and other expenses because of inaccurate predictions, poor investment, mismanagement or misuse. Even though, there is research that argues that the possible threat of negligence claims helps reduce medical errors and maintain high standards of clinical care, others have pointed out that because medical errors are rarely intentional that it’s unlikely the threat of these negligence claims act as a deterrent. It is however evident that a law suit or threat of one increases medical costs by promoting defensive medicine and over-servicing which consequently increases health-care costs as a whole. Due to the threat of legal action, it is evident that it discourages doctors from primarily even reporting adverse events that result from errors or negligence.
There has been little consideration given to the current fault-based approach for medical compensation nor how effective it is for not only the patients but the doctors and society as a whole. The system attempts to negate from entering the civil justice system and proving another party is liable for damages. It is also important to observe that no-fault compensation is already used for third-party motor-vehicle accident and worker’s compensation claims. The current fault-based system for claims of alleged medical injury requires individuals to prove negligence in the courts. This process is inefficient and stressful for all concerned and the costs are estimated to represent half of the final court settlements. Cases may take years to be settled and decided potentially denying access to necessary care and rehabilitation. When specifically looking at cosmetic surgery, the liability issues arise when lawsuits are instituted by one specialty against another in order to drive the competition out of business. However, with the change to no-fault, these conflicts would be removed with all compensation claims being dealt with through administration companies.
Why should our current system change to no-fault compensation?
There is benefits for not only the patient but the medical professionals and society as a whole when looking at the possible reform to no-fault insurance and compensation system. It has the ability to offer more complete cover of all injured persons despite the particular circumstances of injury, predictable care and support over a person’s life. An important element that the no-fault scheme will attempt to remove is having to hear from poorly qualified or biased expert witnesses when proving negligence and causation. The no-fault system will provide with a more effective system of compensation however will not be simple in its entirety. Such judgments will need to be made regarding whether compensation should be given for pain and suffering, whether any or all common law rights should be extinguished and whether there should be upper and lower limits that help to create more structure within the level of damages given. As for any scheme especially when newly enforced, the governance and controls to minimise waste and fraud will need continued work and attention. It is however fortunate that such matters can be learnt from experiences of other countries such as New Zealand.
In New Zealand, patients seek compensation not through malpractice suits as similar to the United States but through the system of no-fault compensation. Injured patients receive government-funded compensation, which consequently relinquishes the right to sue for damages arising from personal injury. There are many factors that contribute to the success of the no-fault system’s affordability which include primarily being funded by general taxation and employer levy, compensation awards are generally lower than under tort law and that the fact that many patients never seek compensation.
The compensation system should hence change to a “no fault scheme” where the focus is on quick compensation and rehabilitation; reducing the time in which patients are waiting for medical attention and finance to help cover and rather than blame or inquire into fault, the claim is more efficiently accepted on an administration basis. There is simply only a causal link to be proven with the insured activity with exclusions for fraud or self-inflicted injuries which are not the result of surgery errors. The design of the system itself is important in that the schemes become the product of reviewed legislation and administered further by an agency which reports then to Parliament. Evidently, there is sufficient time saving and costs used on legal battles as the claims are effectively resolved administratively through claims process. The scheme seeks to balance interests of the insurance cost imposed on those who engage in activity to those compensated for those injured in the activity. Statutory schemes also then limit recovery and place limitations and caps on damages with regards to defined benefits. It is in itself a scheme that attempts to embody a principle of social justice and community responsibility and benefit more individuals.