Term Paper: Fault: An Alternative

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The largest cluster of incidents (216 or 55%) occurred in NHS hospitals. The second largest group (99 or 25%) could be ascribed to General Practitioners. Of the incidents reported:

55% claimed the effect was emotional, minor or temporary in nature

28% reported a temporary or permanent major disability

30% claimed the event had a permanent impact on their health

35% reported to have taken at least one month out of work due to the event

25% reported missing at least one year of work because of the event

Perhaps most notable were the answers to the question: "What response would be most appropriate to the event that occurred?" The majority, or 34% of those surveyed felt that an apology or an explanation was appropriate. Twenty three percent wanted an inquiry into the causes, and sixteen percent wanted support in coping with the outcome. Lastly, eleven percent felt that financial compensation was the most appropriate response.

Roughly the same ratio, 11.4%, actually pursued a claim for damages. Sixty percent declined financial compensation altogether. Twenty six percent stated a figure that they thought would be a reasonable measure of financial compensation. The median value of the figures quoted was £41,700.

THE NATIONAL HEALTH SYSTEM

In the United Kingdom, the system providing the lion's share of health care to the populous is the NHS, or "National Health System." Until 1990, the NHS had "Crown Immunity from claims arising from clinical negligence. Individual doctors could be sued, but public institutions and the board or managers of NHS hospitals or clinics could not be held legally accountable. Doctors had to purchase separate liability insurance for this reason.3 Through 1989, there were three organizations that provided medical liability insurance to doctors: The Medical Defence Union (MDU), The Medical and Dental Defence Union of Scotland (MDDUS) and the Medical Practitioners Society (MPS).

In 1990, when Crown Immunity was replaced by Crown Indemnity, the Medical Insurance Agency (MIA) was formed. The MIA acted as a broker to provide liability insurance to groups of individuals and small practices. Otherwise, since NHS was now the responsible body, doctors were no longer required to purchase significant liability coverage and the MDU's policies dropped significantly.

Between 1990 and 1995 the number of claims filed against the NHS rose. Under the original statute, NHS bore the cost of defending and settling claims. Neither operating nor reserve budgets could withstand the strain, and insurance was not available for this purpose. The response to the situation was the creation of the CNST, or Clinical Negligence Scheme for NHS Trusts was created. The CNST was primarily concerned with risk management. Through the CNST and the NHSLA, or National Health Service Litigation Authority, claims are handled and NHS bodies are indemnified with respect to both clinical and non-clinical risks. The NHS scheme strictly covered medical negligence claims for the doctors and dentists employed under their auspices during their contracted duties, and not for instances of the following:

fatal accident injuries in Scotland disciplinary inquiries into professional conduct/competence good Samaritan work private work (off premises) general practice non-contractual work criminal defense

For this reason, many practitioners take on supplemental policies offered by the aforementioned medical defense organizations (MDOs), or the common providers for the private sector. Another incentive for supplemental coverage is the adjunct services offered by these providers. Help lines, educational services, access to case studies, media representation, external relations and risk management services are offered as part of the package on a "product selection" basis. For instance, occasional coverage for overseas practice or a student package can be purchased. Commercial coverage is varied, flexible and can be tailored towards a particular need, level of expertise, or specialty.

OBSTACLES TO DUE PROCESS

Calls for reform originate from both sides of the proverbial fence, both medical professionals and patients alike. In the April 8, 1998 transcripts of the Adjournment Debate in Parliament (Column 453-4), Mr. Nigel Beard (Bexleyheath and Crayford) stated:

Litigation on account of alleged medical negligence is now epidemic in the United States of America, and, although there are many fewer cases in the United Kingdom, the number here has been rising by about 15 per cent a year for the past five years. A survey in 1996 showed that 37 per cent of consultants and senior registrars had been sued at least once."

Mr. Beard, during his debate, cited two cases which both serve to demonstrate that the present system is essentially unfair to both patients and doctors. The first case cited was the case of Whitehouse v. Jordan. Mr. Jordan was called to Mrs. Whitehouse, whom he did not know previously, late at night as she was in labor. He attempted to deliver the baby using forceps a total of at least five times before deciding to perform a caesarean section. The child received brain damage during the attempted delivery and was severely handicapped. While there was no dispute that the brain damage occurred during the delivery, experts disagreed as to whether the Mr. Jordan exercised accepted medical practices in delivering the baby. It took eight years for the court to find Mr. Jordan not negligent. During that time Mrs. Whitehouse raised her handicapped child without recompense. The child was eleven years old at the time of the verdict.

In the second example, the case of Wilsher v. Essex, a young junior doctor mistakenly inserted a catheter into a vein instead of an artery. Even though he asked a senior registrar to check his actions and the registrar failed to notice the mistake, the junior doctor was judged not as a trainee but by the standards of his more experienced peers, and he was found negligent.

Mr. Baird further added that only a small percent of those suffering from a medical accident ever obtain compensation in what he refers to as a "litigation lottery." According to the Legal Aid Board, only 17 per cent of legally aided medical negligence actions are successful, as opposed to the figure of roughly 50% found in the previous report entitled "The Road to Enterprise Liability." Either pales in comparison to personal injury cases, including road and work accidents, where success rates are 85 to 90 per cent. This statistic supports the notion that establishing fault in medical cases is steeply more difficult than in other types of cases. At the conclusion of the Parliamentary Session, the Hon. Secretary of State exclaimed: "explanation, not litigation. Apologies, not accusations. Excellence, not excuses." Mr. Baird replied, "In the new NHS, that is just what we seek to achieve." Whether a matter of policy or practicality, tort reform is at the forefront of public policy debate.

THE CASE FOR REFORM

According to a report in the British Medical Journal in February of 2000 entitled "Mortality Variations as a Measure of General Practitioner Performance: Implications of the Shipman Case," "Changes in the organization of the NHS or in the management of health professionals are often made within the context of inquiries into specific medical catastrophes rather than through a measured process of policy formation." benefit of civil litigation to date has been the capacity of the law to provide a framework and a method of enforcing quality standards in healthcare. There is a concern that with the advent of reforms in the process of compensation, legal oversight of standards will be lost. According to J. McHale in "Quality in Healthcare: A Role for the Law?," "The law may provide some effective checks and balances to quality but, at the same time, the limits of the law as an effective regulator of quality have to be recognized because of the multifaceted nature of clinical judgment."4

The health service in the United Kingdom has been influenced over the last few years by the rhetoric of the need for "quality care" as part of the clinical governance structure.5

This rhetoric is, at least in part, borne of the diminished public confidence as a result of multiple catastrophic events at the hands of healthcare providers and subsequent public inquiries.

The report of an extensive public inquiry chaired by Professor Ian Kennedy concerning the conduct of pediatric cardiac services at Bristol Royal Infirmary and, in particular, the activities of the surgeon James Wisheart and his colleagues has recently been published.6 The findings of the Inquiry Report revealed that 30-35 children who underwent surgery between 1991 and 1995 died. Reasons cited included "substandard care with no dedicated children's intensive care unit, no mechanism to monitor quality adequately, and poor organization." In addition, the public inquiry into the events at the Royal Liverpool Children's Hospital (Alder Hey) investigated the unauthorized withholding of large quantities of human material including children's organs.7 Incidents such as these served to erode the public's trust of the quality of care, rallying calls for quality control, particularly with regard to this subset of medicine.

McHale further states that "healthcare practitioners owe a duty of care to their patients and, if they break that duty and harm results, then… [END OF PREVIEW]

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