Thursday, July 31, 2008

A different approach to malpractice

A Facebook friend from New Zealand, Marie Bismark, writes:

I enjoy reading your blog and was greatly impressed with the honesty and openness of your response to the wrong site surgery incident. As always, my first thoughts are with the patient - and I trust that your hospital has found a way to meet the needs of patients who suffer such injuries without needing to engage in adversarial legal proceedings.

I've always felt very lucky to live, and practice medicine in New Zealand, where issues of compensation are dealt with quite separately from issues of professional and organisational accountability. All patients who suffer a treatment injury caused by medical care are eligible for no-fault, government funded, compensation (with no need to prove negligence). Claims are usually decided within a matter of days, and the package of care includes financial compensation as well as free treatment, rehabilitation, home help, childcare, and so on. As part of a separate process, a health ombudsman can inquire into the quality of care that was provided and make recommendations for systems improvement, further staff training etc.

Not likely to happen here, I'd guess, given the political influence of lawyers and a strong desire on the part of
many to insist on financial or other punishment as a form of recompense. (A timely coincidence: See the sentence used in the noun example on Wiktionary to help define "recompense".)


Anonymous said...

I wonder how they ascertain legitimacy of the claim (e.g. avoid fraud) and how they determine whether it was the care or the patient's non-compliance which caused the harm.
For example, not taking a prescribed antibiotic post-surgery, or whatever. An enviable situation in any case, but probably more doable there due to lower population.


WhiteCoat said...

Interesting thought, but I agree that trial lawyers would not go along with the hit in income that such a system would involve.
In addition, I would expect that in this country there would be lengthy litigation about the "causation" aspect of the injuries. How does one prove that an injury was caused by treatment versus being caused by a natural course of events?
Also, what prevents people in New Zealand from "milking" the system?

Anonymous said...

Sorry, but I don't get what you mean by "lower." You mean on the bottom of the world? :)

There are 3 million people in NZ. That's a pretty big group.

Anonymous said...

Please be careful in the use of the term "milking" in a country highly dependent on the dairy industry!!

Barry Carol said...

I agree that a generous no fault dispute resolution system is potentially subject to abuse. It would be interesting to know more about how a determination of harm is made and compensation determined. For example, suppose a surgery has only a 50% chance of a successful outcome. If the outcome is not successful, is the patient entitled to compensation? Also, how are cases handled where patient negligence or non-compliance contributes to harm?

Even if a system like this could overcome trial lawyer opposition and be implemented it the U.S., it might not work as well. The populations of New Zealand, Australia, Western Europe, Canada, etc. have more of a solidarity mentality that should, at least in theory, mitigate any tendency to cheat the system because offenders would see themselves as cheating their fellow citizens. In the U.S., offenders are more likely to think they are only cheating an insurance company which, in their mind, is somehow OK even though we all wind up paying for it in the end.

Anonymous said...

Excellent system. A solid medical and insurance lobby should coalesce on this topic and put trial lawyers out of this parasitic segment of their profession.

The after-effects of such a system would be earth-shattering in the medical world. Cost savings would be immense.

Anonymous said...


By "lower" I meant "less populous." Compared to 300 million in the U.S., 3 million ain't much. Anything is far easier to implement in a small, homogeneous country.
During my residency the chair of our dept. at Hopkins used to say any hospital over 1000 beds was inherently inefficient just due to its size. A lousy excuse, by the way!


Anonymous said...

Right, if we think of the US as a whole. But lots of health care policy occurs at the state level, and 20 states have populations under 3 million -- -- and if you look at those smaller ones, the population appears somewhat homogeneous. Maybe some would be interested in a similar experiment.

Anonymous said...


A very interesting idea - and certainly one way for rural states to attract M.D.'s! (:


Anonymous said...

I can guarantee that all of the above "professional" commenters would wish they lived in NZ if an adverse medical event occurred to their family member. And, "milking the system" would be the furthest thing from your mind.

Which US state would be courageous and compassionate enough to follow this example of a proven system that puts the patient first?

John Coxon said...

As a 'kiwi' myself, I am always excited when another kiwi makes a statement that causes the rest of the world to stop and think. At the same time, having reviewed the comments associated with Marie's feedback on the compensation process for medical error in New Zealand I am reminded of Charles Handy, author of The Age of Unreason, written around 1980.

In his book, Handy advocated upside-down thinking. Defined as new ways of thinking, leads to new words to describe actions, leads to new ways of doing things! Change doesn't happen by accident.

Incidentally, although a New Zealander, I live and work out of Australia, where they have the same litigeous attitude towards blame and compensation. Why hasn't Australia gone down the same track as New Zealand? No political willpower to do so. The cost has to be met through additional taxes. Changes to health structures require strong political leadership!

It is worth noting, New Zealand only implemented its current process in 1900, and we've been in country since the early 1800's. The original scheme operated as a workers compensation for workplace accidents till the mid-1970's when a review recommended the scheme be extended to cover personal accidents and motor vehicle accidents.

Marie Bismark said...

More information about the New Zealand system of no-fault compensation is available at We also extend a warm welcome to overseas visitors, so please feel free to contact me if you ever have an opportunity to visit our beautiful country.

In answer to some of the questions above, I agree that a strong social system and universal healthcare makes it is easier to implement a no-fault system. Nevertheless, research by Studdert and Mello at HSPH suggests that it would be possible, and affordable, to implement an administrative compensation system within the US.

A panel of health providers decide issues relating to causation. Compensation is not available if the injury was an ordinary result of a particular treatment (eg hairloss following chemotherapy), or simply because the treatment did not achieve the desired result. Compensation is also not available if the patient unreasonably delayed, or refused consent for treatment.

Patients' needs are regularly reassessed to ensure that they are receiving appropriate rehabilitation, compensation, and support. Return-to-work outcomes are better, and administrative expenses are much lower, than under a litigation system.

National claims data are analysed and disseminated by a Patient Safety team to help support improvements in the quality of care.

Our system is far from perfect but, in the words of Tom McLean, perhaps “even an imperfect administrative compensation system is an improvement over the medical malpractice system”?