New Zealands no fault system of compensation for medical injury

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New Zealands no fault system of compensation
for medical injury

• Peter Davis
• Thursday, 13 June, 2002
• Department of Public Health and General Practice

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Presentation Outline

• Policy and evauation context
• Background
• issues of quality
• regulatory questions
• NZ Quality of Healthcare Study
• Evaluating no fault
• strengths
• weaknesses
• conclusion

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Policy and evaluation

• Key policy actors
• health professions (mainly medicine)
• the State
• patients
• others (e.g. media insurers).
• Principal criteria
• legal, regulatory, and ethical
• health outcomes (i.e. harm)
• performance (cost, effectieveness)
• political (policy actors and process)

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Presentation Outline

• Background
• issues of quality
• regulatory questions
• New Zealand Quality of Healthcare Study
• Evaluating no fault
• strengths
• weaknesses
• conclusion

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Issues of quality

• Historical
• early voices of concern
• Post-War
• complacency and concern
• Contemporary
• internal critics and reformers
• external scrutiny
• cost and efficacy

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Quality - surgery

• The man laid on the operating table in one of
  our surgical hospitals is exposed to more chances
  of death than the English soldier in the fields
  of Waterloo. (Sir James Simpson, 1871)

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Quality - hospital treatment

• It may seem a strange principle to enunciate
  in a Hospital that it should do the sick no harm.
  (T)he actual mortality in hospitals is very
  much higher than any calculation founded on the
  mortality of the same class of diseases among
  patients treated out of hospital. (Florence
  Nightingale, 1863)

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Quality - a public health issue

• Anaesthesia might be likened to a disease which
  afflicts 8,000,000 persons in the United States
  each year. More than twice as many citizens die
  from anaesthesia as die from poliomyelitis.
  Deaths from anaesthesia are certainly a matter
  for public health concern. (Beecher and Todd,
  1954)

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Quality - complacency?

• Barr (1956), Journal of the American Medical
  Association, Hazards of modern diagnosis and
  therapy - the price we pay.
• life-threatening and fatal reactions in one out
  of 20 hospitalised patients
• Moser (1959), New England Medical Journal,
  Diseases of medical progress.
• potent new therapeutic agents and improved
  surgical procedures

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Quality - external scrutiny

• The problem of patient safety has been
  repeatedly identified in the medical literature
  since the mid-1950s. Only recently has the
  medical profession made a systematic effort
  .(T)he public shaming of the profession as a
  result of stories that appeared in the news
  media.
• (Millenson, 2002, Quality and Safety in Health
  Care)

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Presentation Outline

• Background
• issues of quality
• regulatory questions
• New Zealand Quality of Healthcare Study
• Evaluating no fault
• strengths
• weaknesses
• conclusion

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Regulatory questions

• Social contract
• the concept of the profession
• individual responsibility
• peer review
• disciplinary processes
• Legal contract
• common law doctrine of tort
• New Zealand context

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Regulatory - self and peer

• (Y)ou must give doctors the benefit of being
  ... people of standing, of integrity, who are
  loyal to themselves and to their consciences
  honourably and according to the cloth. When you
  take up medicine, you have it in your heart that
  you will do the best for the individual patients.
  Surely, thats enough isnt it? (Dr. Moody)
• (Cartwright Inquiry, p.128)

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Regulatory - NZ context

• 24-hour cover for personal injury by accident
  since early 1970s
• Accident compensation legislation covers medical
  misadventure
• medical mishap (severe and rare)
• medical error (sub-standard practice)
• Medical malpractice claims are effectively
  prohibited, even for gross negligence

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Presentation Outline

• Background
• issues of quality
• regulatory questions
• New Zealand Quality of Healthcare Study
• Evaluating no fault
• strengths
• weaknesses
• conclusion

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Study Goals

• To assess adverse events
• occurrence and impact
• causation and preventability
• To provide
• baseline data on adverse events
• guidance for quality improvement

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Record Review Process
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Sample of Admissions
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Examples of Adverse Events
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Impact of Adverse Events

• For nearly half of all affected patients, entire
  hospital stay was due to the AE.
• Most suffered minimal impairment but extra
  average 9 days (median 4 days) in hospital due to
  the AE.

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Impact of AEs - Disability Status by Hospital
stay
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Preventability of AEs

• In a third of cases reviewers identified
  virtually no evidence of preventability.

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Attribution of Preventability - Percentage
Distribution
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Adverse events - 13 of admissions
Preventable - 8
Negligent - 2.5
Adapted - Fitzjohn and Studdert, 2001
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Serious events - 2 of admissions
Preventable - 1
Negligent - 0.5
Adapted - Fitzjohn and Studdert, 2001
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Presentation Outline

• Background
• issues of quality
• regulatory questions
• New Zealand Quality of Healthcare Study
• Evaluating no fault
• strengths
• weaknesses
• conclusion

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Strengths of no fault

• Access - fewer obstacles to claiming compensation
• Fairness - potentially broader coverage (not just
  restricted to medical error)
• Cost - cheaper and more efficient (fewer
  transaction costs, tariff)
• Candour - less inhibitory of error disclosure and
  discussion

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Access and fairness - compensation claims
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Complaints about Doctors in 2000/01
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Adverse events - 13 of admissions
Preventable - 8
Compensable - 3.0
Adapted - Fitzjohn and Studdert, 2001
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Selectivity of claims
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Cost of claims - taxpayer and doctors
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Cost of claims, 1994-5
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Professional Indemnity Premia (NZ dollars)
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Candour - medical error
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Cross-national comparisons, 2000
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Case study
Setting the scene for error
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Weaknesses with no fault

• Quality incentive
• Without the threat of legal suit, what incentive
  is there (apart from professional pride and self
  respect) to improve the quality of care?
• Regulation and accountability
• Without the availability of standard legal
  remedies, citizens are highly dependent on the
  disciplinary procedures of health professions.

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Severe, preventable adverse events
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HDC - complaints, discipline and prevention
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Complaints about Doctors in 2000/01
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Complaints about Doctors in 2000/01
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Conclusion - access under no fault

• Is it more accessible?
• fewer obstacles to mounting a claim
• yet, low rate of claiming
• and clinical and social selectivity operating
• (Can it be made more accessible?
• e.g. simplify grounds for claiming)

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Conclusion - fairness under no fault

• Is it fairer?
• wider coverage (not just error)
• no financial and legal obstacles
• yet, what relevance does preventability have for
  compensation?
• (Can it be made fairer?
• e.g. rationalise grounds for claiming)

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Conclusion - cost under no fault

• Is it cheaper?
• fewer transaction costs
• linked to disability support and reimbursement
  for costs incurred
• widening of compensation on grounds of fairness
  will increase costs
• (How to deal with dental and private hospital
  cost disputes?)

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Conclusion - candour under no fault

• Does it encourage candour?
• may be the case in patient notes
• HDC decisions are public
• yet, little wider discussion of adverse events
  and medical error
• (How can this be further encouraged?)

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Conclusion - quality and accountability

• What effects on quality?
• no firm evidence that the quality of care in New
  Zealand is inferior
• What effects on accountability?
• major causes celebres still occur through
  litigation (e.g. Cartwright Gisborne)
• (Have we done enough in this area?)

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