Medical injury, patients' claims and the effects of government responses in Anglo-American legal systems.

Almost no one is happy with malpractice liability, the traditional AngloeAmerican system for dealing with complaints about medical injury. To its more trenchant critics it is inefficient, ineffective, inaccurate and, what matters most, it is structurally inconsistent with the fundaments of quality improvement and future patient safety. It is, in all, something only a trial lawyer could love. 3 Efforts at reform are in place almost everywhere. New Zealand has effectively barred malpractice litigation entirely; Australia has curbed it by offering parallel, commissionbased procedures; Canada and England have relatively lower claiming rates due to disincentives built into law and insurance practices; while in the USA the process remains troublesome. Many hospitals and some liability insurers have initiated disclosure and early intervention programs to prevent disappointments from turning into legal claims, but the legal environment in the USA remains largely unchanged. Some states in the USA limit recoveries through the imposition of ‘caps’ on damages such as ‘pain and suffering’, but more fundamental reforms are few. Dissatisfaction with the process among patients is particularly notable. Traditional litigation provides only money, and then only infrequently, slowly and at considerable emotional and psychological expense. Injured patients, however, report the need for other things : restoration (more broadly than cash); sanction (accountability for erring providers); communication (disclosure, explanation, apology); and, perhaps most significantly, correction (steps taken to assure the error is not repeated). Money is a poor surrogate for these other concerns. Australia and New Zealand have responded to that fact by creating health complaint commissions, agencies empowered to deliver a broader and more responsive array of remedies. Many of us in the USA who are considering the shape of comprehensive reforms there have been looking at these models for inspiration and experience. The experience, however, is mixed. Even in Australia and New Zealand patient dissatisfaction is still significant. Bismark et al hypothesise in the accompanying article that this dissatisfaction flows from a ‘gap’ between what patients want from these commissions and what they receive. Analysing a subset of complaints (those alleging inadequate informed consent) and using as their analytical scheme the four desiderata just discussed, the authors compare what patients said they wanted from the process with what the commissions’ conciliators reported they received. Measured in that dichotomous, non-qualitative, way, they found the gap they predicted in three of the categories: fewer than 1 in 10 who sought sanctions achieved it; about a third of those seeking restoration received that; and, again most significantly, correction was achieved for fewer than 1 in 5 of the many complainants who reported that as among their goals. The study has a number of limitations, all the more important of which are explicitly discussed by the authors. For one, the incidents studied are a selected subset of a distinctive type of medical complaint, viz only those complaints defined as a ‘case’ that allege inadequate informed consent. Whether the study’s findings are generalisable is therefore a significant but unanswerable question. For another, little is known about the qualitative aspects of either the complaints or the remedial outcomes. That is to say, the existence of a gap is dichotomous. Anddalthough this is something the authors’ data did not allowdit is not possible in these findings to determine the legitimacy of the patients’ demands. If, for example, a patient demanded that a provider be sanctioned but that did not happen, was that because the care was in fact not sanctionable? I return to the importance of this question below. There are a number of other interesting questions raised by the study by Bismark et al and its results that are somewhat less obvious. Students of the sociological sciences, for example, will recognise at least one additional body of work with which the study’s findings might be linked: there is little that is intrinsic or inevitable about peoples’ needs and expectations following an injurious event. What people want and expect is as much a function of environmental variables as it is of objective injury, loss, or pain. Professor Sally Lloyd Bostock, one of the most published expositors of this view, developed what she termed an ‘attribution theory’ to link injury Correspondence to Professor Edward A Dauer, 127 South Garfield Street, Denver, CO 80209/ California Western School of Law, San Diego CA: [email protected]