No Fault Regime Better Than a No Fault Rule - Medical Negligence

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‘Is a no fault regime better than a negligence rule as a way of dealing with the causes and consequences of medical error?’
When assessing whether a no fault regime is better than a negligence rule in dealing with the causes and consequences of medical error, it would seem prudent to first understand the meaning of the term “medical error”. Liang defines medical error as ‘a mistake, inadvertent occurrence, or unintended event in health-care delivery which may, or may not, result in patient injury’ (2000, p.542). The consequence of these errors (or adverse events) that lead to patient injury, and the method by which we determine and administer compensation for such injuries, has been the source of heated debate amongst scholars in recent
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The NHS Litigation Authority is now responsible for claims of clinical negligence, with trusts in England belonging to the Clinical Negligence Scheme for Trusts (CNST) run by the NHSLA; with the current structure providing indemnity for all those employed by the NHS; whereby ‘NHS employers are ordinarily responsible for the negligent acts of their employees where these occur in the course of the NHS employment’ (NHSLA, 2011). It could be argued that because doctors are no longer individually liable for their actions, this could invoke a reduced standard of care. In spite of this, Towse & Danzon (1999) suggest that with the assumption that an employer is at a better position to mitigate risk than its employees; this move to ‘enterprise liability’ should further improve deterrence. Tappan (2005) adds that adopting enterprise liability helps deterrence by giving hospitals incentives to gather data and eliminate errors; and due to the heightened financial risk, to identify and deal with doctors providing inefficient treatment. This is supported by NHS policy, which states that if it is deemed appropriate to do so, a Trust may ‘take disciplinary action against the individual responsible for the negligence which caused the harm’ (NHS, 2005). Since the NHSLA also provides incentives, such as discounts ‘to hospitals that achieve certain
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