Regulating Compensation for Injuries Associated with Medical Error

Abstract

There is now agreement that around 10 per cent of all hospital admissions to acute care hospitals give rise to preventable adverse events. These high levels of injury throw into sharp relief the unfairness of the tort based system of compensation for medically related injury where a relatively small number of plaintiffs recover compensation. These high levels of injury also highlight the relative ineffectiveness of tort law in improving levels of safety by deterring unsafe conduct. This article argues that in the field of medically related injury tort law is not a good model for providing compensation to patients who sustain injuries associated with medical error. In this field tort law does not and cannot accommodate regulatory initiatives that are designed to improve levels of patient safety. While tort law focuses on particular instances of fault these regulatory initiatives adopt a systemic approach to improving safety. Against this background this article then argues for an experimental and localised approach to developing systems of compensation for injuries associated with medical error. This approach is based on the principle that compensation should be integrated into particular regulatory initiatives that are designed to improve patient safety by reducing the levels of particular classes of preventable adverse events.

Keywords: Torts, Compensation, Medical Error, Regulation, Medical Malpractice

JEL Classification: I18, I11, K13, K20, L30