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To find fault is easy, to find no-fault is fair

Richard J Epstein
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DOI: https://doi.org/10.7861/fhj.2022-0049
Future Healthc J March 2023
Richard J Epstein
AUniversity of New South Wales and Garvan Institute of Medical Research, Sydney, Australia
Roles: adjunct professor
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  • For correspondence: profrichardepstein@gmail.com
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Abstract

The inequity of medical negligence-based adversarial litigation in the USA, UK and Australia is a recognised target for reform. Plaintiff autonomy is weakened by a dispute resolution system that has evolved around lawyers, opposed experts and indemnity insurers; the need to prove breach and causation excludes compensation for other categories of medical injury; and patient access to the system is restricted by high entry costs. Two strategies towards reform are raised here. A short-term approach involves routine initial use of a single court-appointed medical expert for assessment of errors and liabilities, thus improving access while relegating fault-finding to a reserve role. In the longer term, adversarial litigation could be replaced in part by a no-fault compensation scheme – such as in Scandinavia, France and New Zealand – funded by taxation and by re-directed medical indemnity fees. Reforms such as these would be challenging to implement, but are achievable, so it is not premature for relevant bodies to consider a timetable for action.

KEYWORDS:
  • medical injury
  • compensation
  • negligence
  • adversarial system
  • tort reform
  • © Royal College of Physicians 2023. All rights reserved.
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To find fault is easy, to find no-fault is fair
Richard J Epstein
Future Healthc J Mar 2023, fhj.2022-0049; DOI: 10.7861/fhj.2022-0049

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To find fault is easy, to find no-fault is fair
Richard J Epstein
Future Healthc J Mar 2023, fhj.2022-0049; DOI: 10.7861/fhj.2022-0049
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