Elsevier

The Lancet

Volume 368, Issue 9531, 15–21 July 2006, Pages 240-246
The Lancet

Review
Effects of the medical liability system in Australia, the UK, and the USA

https://doi.org/10.1016/S0140-6736(06)69045-4Get rights and content

Summary

Although the direct costs of the medical liability system account for a small fraction of total health spending, the system's indirect effects on cost and quality of care can be much more important. Here, we summarise findings of existing research on the effects of the medical liability systems of Australia, the UK, and the USA. We find systematic evidence of defensive medicine—medical practice based on fear of legal liability rather than on patients' best interests. We conclude with discussion of four avenues for reform of traditional tort compensation for medical injury and several suggestions for future research.

Section snippets

Importance of the effects of tort law on medical care

The common law of torts awards damages to a patient when his or her doctor acts negligently and causes an injury. In a simple model of medical decision-making, this law would induce doctors and patients to balance the costs of liability against the costs of precaution and the health benefits of care.

Unfortunately, operation of the countries' health-care and liability systems deviates substantially from this simple model. Information and other barriers might prevent patients from filing a

Empirical estimates of the effect of tort law on medical care

This theoretical indeterminacy has resulted in vigorous debate about the effects of tort law on medical care. Early work investigated the effect of doctors' exposure to various measures of malpractice pressure on positive defensive medicine.20 Although most of this research reported evidence of defensive medicine, critics have argued that this result might be attributable to a fundamental limitation of its methods. In general, early researchers measured malpractice pressure by the frequency of

Four avenues for reform of tort compensation for medical injury

Policymakers and researchers in Australia, the UK, and the USA have experimented with different reforms to the traditional common law of tort to address shortcomings of the existing medical liability system. We discuss four of the most important.

Conclusion

How should common-law countries' tort systems apportion damages from medical injuries? Because the delivery of medical care is so different from the archetypal accident on which the law of torts is based, the law might lead doctors to take either too much or too little care to prevent medical injuries. In particular, because most patients and doctors in Australia, the UK, and the USA are insulated from the costs of precautionary tests and treatments, the liability system in these countries

Search strategy and selection criteria

We searched MEDLINE, ECONLIT, and the internet with terms such as “medicolegal”, “liability”, “tort reform”, and “defensive medicine”. We also pursued articles referenced in primary sources and their relevant citations. Review articles and book chapters are cited to provide readers with more details and more references than this paper has room for. Our reference list was modified on the basis of comments from peer-reviewers.

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