Question

Discuss for and against compensating victims of medical injuries via tort liability. What does the question above mean and paragraphs to include in an 2000 word essay. The 2000 word is mandatory

Answer 1

Compensation for personal injury and damage to property is a major aim of tort law. The objective is full compensation wherever possible, and in this respect tort compensation differs from funds received from the welfare state system in that the latter often tend to be calculated on a flat-rate basis.

Compensation for physical injury includes consideration of past and future economic losses as well as monetary satisfaction for a variety of nonfinancial items of damage, such as pain and suffering or loss of amenities, which are not amenable to precise mathematical calculation. The various headings of damage do not have exact parallels in all systems, but similar factors tend to be taken into account when calculating the final award. In some systems, such as the French, where the actual calculation of damages is treated as a question of fact and is left to the judge of first instance, regional variations in the size of awards occur. In England, by contrast, since the abolition of civil juries in personal injury cases there has been a greater standardization for certain headings of damages. Common-law systems prefer lump sum awards, whereas in civil-law systems periodic payments are favoured. In many instances the difference appears to be one of theory rather than of practice. Thus, even where periodic payments are preferred, courts often order or facilitate the award of damages in a lump sum, partly because victims tend to prefer this method and partly because any future complications are avoided. A third and perhaps equally important reason is that lawyers can more easily exact their fees from lump sums than from relatively small installments, however regular.

If the victim dies, all systems tend to allow his estate to claim whatever he could have claimed had he been alive. The conditions for bringing this action vary, however (German law, for example, is more restrictive than English law). Right to action is also given to the dependents of the deceased. In the common-law systems this is expressly created by statute (the so-called fatal accidents or wrongful death statutes); in German law the action is authorized by the Civil Code, while in French law and its derivatives it is based on the general provision of article 1382. Systems also tend to differ over the question of who should be allowed to sue under this heading. Common-law statutes specifically designate the list of dependents, insisting additionally that they are actually supported by the deceased at the time of his death or, at the very least, have a reasonable probability of an imminent dependency. In contrast, German law limits claims to persons having a legal right to maintenance, and these persons are listed in the family section of the Civil Code. French law appears to be open-ended, insisting only on actual dependency at the time of the death. The difference with the other two major systems is more apparent than real, however, the courts often excluding claims by nonrelatives through various causative devices.

Alongside tort, social welfare systems proliferate, operating through a tangle of complicated rules, often with little or no attempt to relate the two systems. The full picture of compensation for accidents depends on close study of parallel but limited schemes—e.g., for accidents at work, for road traffic accidents, or for victims of crime—which in some systems coexist along with tort but in others tend to displace it. This unhappy coexistence is one of immense complexity and, no doubt, waste, both of which most commentators have criticized. Despite such criticisms, few countries have attempted the kind of wholesale reform of the all-embracing no-fault system of compensation that New Zealand introduced in the early 1970s, a system that is financed out of general taxation, contributions from employers and employees, and a levy on motor vehicles. There are several reasons for this, but cost is, no doubt, an important factor, even though critics of the tort system maintain that one should also weigh the extra cost of automatic compensation against the savings brought by the abolition of the tort system. But further difficulties exist. Should such automatic compensation be linked to accidents or should it also cover illness? Should compensation be determined by the victim’s circumstances before the accident or be based on flat rates? And should the emphasis be on compensating the victim’s economic loss with, perhaps, token sums awarded for non-pecuniary loss (as with the New Zealand scheme) or should non-pecuniary loss receive more generous treatment (as under tort law)? The debate on these points adds to the theoretical and practical interest of this subject, even though there is little sign of the New Zealand system being adopted in any major Western country.

The applicability of “fault based” liability has also been controversial in the context of medical negligence claims. Under the current system, a claimant must “show that a duty of care existed; that the defendant failed to conform to the required standard of care, either by his acts or by his failure to act; that the plaintiff sustained damages; and that the breach of duty was the proximate cause of the damages”.

The initial problem of fault based liability in medical cases is the conflict of establishing “fault” with the medical standard of care propounded in the authoritative case of Bolam, which requires standards of medical treatment to be administered in accordance with a responsible body of medical opinion, even if another body of opinion has a different view.

This conflict is further compounded by the imposition of tort based liability. The current system centres on deterrence and on the premise that unless health care practitioners face potential liability, there are no preventative incentives to avoid an accident and ensure care.

Danzon highlights this through economic principles in highlighting that economic efficiency dictates an incentive for health care providers to ensure the socially optimum level of care, and where the sum of expected costs of accidents and costs of avoiding accidents are minimised.

It is further argued that the role of the courts in medical claims should be to make the socially optimal level of care a legal minimum, and hence if doctor takes care at level “X” or above and accident occurs, then they should not be liable: “Under a perfectly functioning negligence rule there should be no negligence and no claims, since, by definition it is cheaper to prevent injuries that would be deemed negligent than to pay for the resulting damages”.

Whilst such an approach is justifiable in preventing floodgate claims, the concept of a socially optimum level of care above which there is no liability, again highlights the problems of enforcing the concept of fault. The term inherently fails to address the wide range of situations that will attract liability in tort and it is submitted that a detailed consideration is needed of the definition of fault in negligence which is accounts for the variances in the type of claims that fall within the parameters of negligence liability. Similar to the criticisms of the accident compensation claims, the negligence based system in the medical arena has been attacked for the slow process of bringing proceedings compounded by unpredictability of what constitutes negligence.

Further, there appears to be a significant discrepancy between the matching of injuries to claims: “The evidence from 1974 suggests that almost 1 per cent of hospital admissions resulted in a mishap due to negligence, and that only 1 in 25 of these patients was compensated through the tort system”. This is further perpetuated by the costs of litigation effectively resulting in a medical claims lottery, potentially excluding meritorious claims.

The use of a jury based system has also been attacked. Firstly, it is commented that juries will not be equipped with the relevant knowledge and sufficient information to adequately determine what is the socially optimal level of care66. As such, determinations on size of damages particularly for intangible losses such as “pain and suffering” have been inconsistent and arguably inappropriate in certain cases. Juries have also been inconsistent in their approach to whether damages are related to the severity of the injury or the degree of negligence by the health professional again emphasising the problem of fault as a determinant of liability for negligence.

As a result of this inconsistent approach to “fault”, the whole system of corrective justice is undermined by virtue of ad hoc decisions, which heightens uncertainty as to the boundaries of liability for medical negligence. This is highlighted by Danzon, who asserts that “The efficiency of tort as a compulsory insurance system would be increased by replacing individualized awards with scheduled benefits in order the reduce uncertainty”.

Furthermore, the purported “deterrent” objective of tort based liability in preventing negligent health care is questionable in light of claims that physicians have in practice been encouraged to practice “defensive” medicine and go beyond the socially optimal level of precaution to prevent claims. For example, a study by the Hudson Institute of hospitals in Indiana found that defensive medicine and other direct costs of malpractice liability actually raised costs by 5.3%.