MEDICAL INJURY COMPENSATION: BEYOND 'NO-FAULT'

Abstract

If I am injured in the course of medical investigation or treatment, I may be eligible to receive compensation for some of the adverse consequences of my injury—at least, if I live in a developed country. In most such countries, there exists some form of state-administered compensation scheme for medical injuries. However, even within the developed world, there is considerable variation in the eligibility criteria for compensation. Different countries would, for example, respond very differently to the following pair of cases. Case 1. Mr. Smith suffers a brain haemorrhage as a result of a genetic defect in the arteries supplying his brain. He is taken immediately to hospital where he is rushed to the operating theatre, unconscious, to have the blood drained from his skull. During the course of the operation, the surgeon negligently damages the part of his brain that controls his right leg. Though Smith subsequently recovers from his haemorrhage, the damage inflicted by the surgeon leaves him with a permanently paralysed leg. Case 2. Mrs. Jones, like Mr. Smith, suffers a brain haemorrhage as a result of a genetic defect. Jones too is rushed to the operating theatre, and, as with Smith, the surgeon damages the part of her brain that controls her right leg. In Jones' case, however, the damage is not due to negligence on the surgeon's part. It is instead an unusual side effect of good surgical practice: the surgeon (correctly) believes that it is necessary to damage this part of the brain in order to stop the haemorrhage and thus save Jones' life. The result, however, is the same. Jones recovers from the haemorrhage, but is left with a permanently paralysed leg. In most Anglophone jurisdictions, Smith would be eligible to receive compensation through a court-based tort law system, whereas Jones would be left to make do with the ordinary social security and public healthcare arrangements. The difference in treatment arises because tort systems typically endorse the ‘fault criterion’ according to which the victim of an injury is awarded compensation, paid by the injurer, only if she can establish that the injurer in question was at fault for her injury. Plausibly, Smith could establish this.1 Jones, however, surely could not.