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

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 redirected 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.