Is litigation an indispensable form of protection against error

Sze M Ng, Consultant Paediatric Endocrinologist,
July 22, 2014

I read with great interest, Dr Rosenbloom's recent article. He discusses how difficult issues are raised involving blame when a medical error is discovered but the process may offer families restitution and compensation. 'Parental responsibility' is a term used to describe the legal duty that a parent has to their child (1). Parents act, therefore, as surrogate decision makers on the basis of what they believe to be in the child's best interests. This responsibility includes making decisions to pursue litigation that may have an effect on their child's future and weighing up the harms and benefits of pursuing litigation.

Existing regulations and legislation are designed to afford protection to children receiving medical care. However, in today's climate, litigation can be viewed as an indispensable form of protection or compensation against medical carelessness or error. Almost every hospital and clinician have full insurance coverage which are skyrocketing annually. Yet, there is no evidence that medical litigation has resulted in improved healthcare.(2) Studdert et al found that claims which found no evidence of medical error were often denied compensation but substantial expenditures go toward litigation over errors and payment of them. The overhead costs of medical litigation is spiralling (3).

Wood states that 'the law confuses error with negligence and error should not be the basis for litigation'(4). Litigation based on error is therefore counter-productive to improving quality of care. Surely, the ultimate aim of our healthcare system is to enhance safety and quality, not reduce insurance premiums

1.Children's Act 1989, section 3(1). 2. Morris JA Jr, Carrillo Y, Jenkins JM, Smith PW, Bledsoe S, Pichert J, White A. Surgical adverse events, risk management, and malpractice outcome: morbidity and mortality review is not enough. Ann Surg. 2003 Jun;237(6):844-51 3. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-33. 4. Wood C.The misplace of litigation in medical practice. Aust N Z J Obstet Gynaecol. 1998 Nov;38(4):365-76.

Conflict of Interest:

None declared

Conflict of Interest

None declared