Compulsory "Hospital-Accident" Insurance: A Needed First Step toward the Displacement of Liability for "Medical Malpractice"

Abstract

oTH the patient and those entrusted with his care are poorly served by present rules and institutions relating to liability for medical malpractice. This is generally known and said. On the one hand, the physician, the nurse, the anesthetist, the hospital administrator and others who, in the chain process of modern medicine, in easy retrospect, appear to have committed an error of judgment or technique to the patient's detriment, may be exposed to years of emotional and financial stress or even to economic and professional disaster. Called upon to alleviate such exposure, liability insurers seeking to distribute incalculable risks, find themselves compelled to charge more or less arbitrary premiums which result in a disproportionate burden on the insured and ultimately on the public. On the other hand, the patient who seeks indemnity for an injury that he suffered somewhere in the chain process of modem medicine, sees himself compelled to assert and to prove unprovable fault. The complexity and uncertainty of the resulting litigation must cause disproportionate expense. Moreover, there is the ever growing clamor of plaintiffs' attorneys who chide the medical profession for discouraging its members from assisting plaintiffs in a "conspiracy of silence." 1 Finally, even the patient who has been successful in obtaining a judgment may remain without compensation where the defendant is insolvent and fails to carry liability insurance. Many of these problems are common to other kinds of enterprise liability and have begun to occupy legislators and scholars particularly in that area which most obviously and dramatically requires reform, the law of automobile liability. I have tried elsewhere to show that the ultimate solution in that area calls for replacing our present system of tort liability and tort insurance by a compulsory accident insurance

Commentary: Malpractice Reform in Policy Perspective

“…Liability or some replacement policy seems most likely to become more systematic in injury prevention if it, like workers' compensation, can find more injuries, generate more information about their nature and the most reliable ways to prevent them, and fairly and promptly provide basic compensation. Non‐fault‐based administrative compensation similar to workers' compensation is one approach (Abraham 1988; Bovbjerg and Tancredi 2005; Ehrenzweig 1964; Havighurst and Tancredi 1973; IOM 2003; Mello et al 2006; Studdert and Brennan 2001). A prominent weakness is political resistance to its full‐fledged implementation (Bovbjerg and Sloan 1998).…”

Creating Outcomes-Based Systems for Quality and Malpractice Reform: Methodology of Accelerated Compensation Events (ACEs)

“…The idea of shifting to an alternative system for medical injuries, as under ACEs, has existed for some time. Avoiding the lengthy, expensive, individualized demonstration of provider fault has been the subject o f scholarly writing for over three decades (Ehrenzweig 1964). Such concepts have become widely known as "no fault," borrowing from automobile insurance (Keeton and O 'Connell 1965;Widiss et al 1977).…”

Minimising medical litigation: a review of key tort and legal reforms

“…Ehrensweig (1964). This early concept did not explain how medical outcomes ought to be differentiated in terms of those resulting from the act of care vis-a`-vis the patient's original illness.153Havighurst and Tancredi (1974).…”