Leading patient safety proposals promote the design and implementation
of error prevention strategies that target systems used to deliver care and
eschew individual blame. They also call for candor among practitioners about
the causes and consequences of medical injury. Both goals collide with fundamental
tenets of the medical malpractice system. Thus, the challenge of addressing
error in medicine demands a thorough reconsideration of the legal mechanisms
currently used to deal with harms in health care. In this article, we describe
an alternative to litigation that does not predicate compensation on proof
of practitioner fault, suggest how it might be operationalized, and argue
that there is a pressing need to test its promise. We tackle traditional criticisms
of "no-fault" compensation systems for medical injury—specifically,
concerns about their cost and the presumption that eliminating liability will
dilute incentives to deliver high-quality care. Our recent empirical work
suggests that a model designed around avoidable or preventable injuries, as
opposed to negligent ones, would not exceed the costs of current malpractice
systems in the United States. Implementation of such a model promises to promote
quality by harmonizing injury compensation with patient safety objectives,
especially if it is linked to reforms that make institutions, rather than
individuals, primarily answerable for injuries.
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