IS A 'NO FAULT' COMPENSATION SCHEME THE ANSWER TO THE PROBLEMS OF TORT IN CLINICAL NEGLIGENCE?

Abstract

With patient safety now catapulted to its rightful position at the top of the agenda, a renewed discussion surrounding clinical negligence and its recompense is inevitable. The introduction of 'no fault' compensation has many advantages over the current adversarial system that operates in the United Kingdom and many other countries. By definition, 'no fault' compensation does not require the claimant to have suffered as a result of negligence and it covers those who suffer from inadvertent consequences of treatment. If a patient is paralysed by surgery, does (s)he deserve compensation in the absence of neglect? I would argue yes, not only because of the often insurmountable hurdle required to prove causation but also out of fairness to the claimant. There is little difference to the consequences to the patient, regardless of the cause. At present, many claims fail because of the difficulty of differentiating between a rare complication and negligence, thus the removal of this barrier would ensure the care needed for the unlucky few and, at the same time, ensure preventative measures were put in place.