No-Fault Compensation for Medical Injury Proposed as Incentive for Reporting and Correcting Hospital Error, Improving Patient Safety
For immediate release: July 10, 2001
Boston, MA— A blameless system for compensation of medical injury, similar to that used in Sweden, should cost no more than the current malpractice system in place in the U.S. and should encourage patient safety improvements. This is the argument made in "No-Fault Compensation for Medical Injuries: The Prospect for Error Prevention" in the July 11, 2001 issue of the Journal of the American Medical Association (http://jama.ama-assn.org/). The article was written by David Studdert, assistant professor of health policy and law, and Troyen Brennan, professor of health policy and management, at the Harvard School of Public Health. An editorial by W.M. Sage titled, "Principles, Pragmatism and Medical Injury" appears in the same issue.
The Institute of Medicine’s (IOM) recent report on error in medicine raised public awareness of the alarming extent of injury and death due to preventable errors in American hospitals. The report made an analogy of three jumbo jets filled with patients crashing every two days—the number of patients estimated to die annually from medical injury in the U.S.
With hospitals just now facing new federal safety rules requiring disclosure of medical errors, the authors argue that candid discussion and reform cannot take place under the current malpractice set-up that rests on finding fault with individual physicians before compensating patients.
Leading patient safety proposals focus on problems inherent in the care delivery system, rather than trying to assign blame to individuals for medical error.
Applying principals from Sweden’s no-fault system to data from a no-fault pilot project which the authors designed among hospitals in Utah and Colorado, Studdert and Brennan calculate that such a system would be no more expensive than the current malpractice arrangement and would not dilute incentives to deliver high quality care, the two traditional criticisms of "no-fault" compensation. The system would be designed to compensate avoidable or preventable injuries, as opposed to negligent ones.
This kind of model is needed to improve patient safety, "we are going to have great difficulty gathering good information about medical injuries with the specter of lawsuits hanging over people’s heads," said Studdert. "The traditional assumption has been that no-fault is simply too expensive. We show this is not so."
Said Brennan, who is also a clinician and president of the Brigham and Women’s Hospital physician organization: "Malpractice litigation induces silence and bitterness, rather than an open effort to understand the causes of errors. Litigation is not an effective way to improve quality."
The researchers studied "no-fault" compensation systems in a handful of countries that have embraced the concept: Denmark, Sweden, Finland and New Zealand. In Sweden, patients who believe they have been injured as a result of medical care are encouraged to apply for compensation using forms available in all clinics and hospitals. Doctors and social workers help patients file claims, much as American physicians often provide assistance to their workers’ compensation patients.
The Swedish system is based on the principle of "avoidability." Adjudicators investigate whether 1) an injury resulted from treatment 2) the treatment in question was medically justified, and 3) the outcome was unavoidable. If the answer to the first query is yes, and the answer to either the second or third queries is no, the claimant receives compensation. But before a patient is eligible for compensation, they must have spent at least 10 days in the hospital or endured more than 30 sick days. This threshold eliminates minor claims.
The authors call for testing a Swedish-type compensation model in the U.S. "Our view is certainly optimistic," they write, "But it is a social experiment worth undertaking if we are to decrease significantly the number of injuries caused by medical errors."
This study was supported in part by the U.S. Agency for Healthcare Research and Quality and the Robert Wood Johnson Foundation.
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