No-fault Scheme Research Articles

Insurance research and medical ethics.

On January 1, 1995, Saskatchewan adopted a radical, no‐fault system for motor vehicle accident insurance. Virtually no room was left for injured victims to sue for damages, whether for pain and suffering or for economic compensation. In fact, the no‐fault system removed benefits for pain and suffering altogether. Apart from the concern that arose at the denial of justice in relation to economic matters and the blanket denial of pain, there was concern over the arrangements for medical care. Under the new Automobile Accident Insurance Act, injured persons were entitled to compensation and payment for treatment, as managed by their own doctors, chiropractors or physiotherapists for the first six weeks subsequent to an injury. Thereafter, they were required to be seen by insurance company‐appointed doctors, chiropractors or physiotherapists if they wished the income replacement benefits to continue, treatment to be provided or both. They also were obliged to accept the recommendations of the insurance company doctors for the next 12 weeks, under what was called ′secondary rehabilitation′. If they claimed not to be well at the end of that period, further rehabilitation, described as ′tertiary rehabilitation′ would be ordered. Two specific ′in‐patient′ centres were established for tertiary rehabilitation in different parts of the province (Regina and Saskatoon), and victims thought to be in need of tertiary rehabilitation had to travel if they did not live in either Regina (the provincial capital) or Saskatoon. The administration and treatment of individuals under these systems were so unacceptable to many individuals that a widespread resistance movement was generated and was established as the Coalition Against No‐Fault Insurance on August 28, 1998, opening with simultaneous protests in Regina, Saskatoon, Prince Albert North Battleford and Estevan, each one organized by a local victim of the no‐fault insurance scheme.

Part 24: Statutory compensation

In general if a person alleges that they have suffered harm and wish to receive compensation, then they have to prove that the harm resulted from a person's negligence or breach of statutory duty. In other words, this country has a system of fault liability as opposed to the no-fault liability schemes in New Zealand, Sweden and Finland, for example.

Occupational Sickness and Compensation: Two New Zealand Case Studies

This paper explores the process of seeking compensation for occupational illness under a no-fault accident insurance scheme. It uses two case studies, the first of firefighters who attended a fire at a chemical storage depot, the second of timbermill workers who worked with pentachlorophenol, to illustrate how science can be used to deny compensation to sick and dying workers. The paper suggests that science can be co-opted and used to support business and state interests against workers, and that this ideological support is increasingly hidden behind the development of 'objective' systems of assessing compensation claims.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

The use of health services in the management of wound infection

This study focuses on the use of health services by patients ( n = 1100) with a wound infection that warranted compensation in Finland during 1988–1990, under the no-fault insurance scheme instituted in 1987. The use of services covered the basic hospitalization for the operation and the extra use of outpatient and inpatient services. On average, the initial hospital stay for the basic operation was 9·2 days, but the patients required, on average, 33·2 extra hospital days and 3·9 extra outpatient visits. The infection was detected after discharge in 62% of the cases. The probability of any outpatient visits increased ( P< 0.05) if the initial hospital stay was short, if the infection was detected after discharge and if the patient was still receiving compensation. The number of extra visits increased if the operation took place in the public sector, if the infection was detected after discharge, if the patient was still receiving compensation and the older the patient was. The probability of any extra days increased if the operation was non-orthopaedic, if it was non-elective, with more than one preoperative day, if the infection was detected in hospital and if the patient was still receiving compensation. The number of extra days increased if the operation was non-elective, if the infection was detected in hospital, if the patient was still receiving compensation, the older the patient and the longer the initial hospital stay.

The Danish Patient Insurance Act of 1991 (LOV 1991-06-06 NR 367 OM PATIENTFORSIKRING)

In 1991, Denmark established a Patient Insurance Scheme, the fourth Nordic country to do so. Under the various national Nordic schemes, patients can receive indemnification for the consequences of medical injury even where the injury is not caused by negligent treatment. Instead emphasis is laid on whether the injury, viewed in retrospect, could have been avoided or whether the injury, though unavoidable, clearly exceeds the risk that the patient must accept. Differences in the four national approaches are analyzed and it is concluded that a no-fault scheme presents an elegant alternative to the tort law system, which proves to be particularly unsatisfactory in the field of medical accidents.

Professional negligence.

In the last 5 years there has been an extraordinary increase in negligence actions against South Australian ophthalmologists. This paper considers the reasons, in particular those changes in the interpretation of the law which have made doctors vulnerable. Medical practice needs to be modified if doctors, especially surgeons, are to protect themselves, but the appropriate changes may not be in patients' best interests. The law of negligence is said to be on the brink of collapse and the Australian situation offers an interesting contrast to New Zealand's no-fault accident insurance scheme.

Designing a No-Fault Alternative

A no-fault compensation scheme should rank at the very top of a list of long-term solutions to the perceived crisis in medical malpractice. The form of no-fault system most likely to be adopted would be one providing automatic compensation, not for all iatrogenic injuries, but for a limited set of designated compensable events. Such a compensation system would be closely integrated with the day-to-day activities of health care providersindividual practitioners, institutions, and health maintenance organizations (HMO's)-and would link compensation closely to the outcomes of medical intervention. In addition to providing quick and equitable compensation for a wide range of medically caused injuries, a properly designed system would supply strong incentives for modifying provider behavior to improve the quality of health care.' Although a no-fault scheme might be embodied in legislation, this idea has not yet been embraced by public policy makers. Nevertheless, it remains possible (subject to concerns about the enforceability of agreements modifying tort rights) for a no-fault scheme to be adopted privately in provider/patient contracts backed by a form of casualty insurance. In the current competitive environment of the health care industry, the availability of the voluntary no-fault alternative would greatly expand the freedom of choice of both providers and consumers of health care services.2

Automobile Accident Compensation: Who Pays How Much How Soon?

Statistical methods are applied to national closed claims data and national survey data about automobile accident compensation. The empirical analysis confirms some conventional wisdom and reveals some surprises. As intended, no-fault schemes appear to increase the proportion of victims being compensated. Moreover, because fewer victims are paid general damages, payments to similarly situated victims vary less in no-fault states than in tort states. Even modest tort thresholds work surprisingly well in reducing the number of bodily injury insurance claims. Finally, the empirical evidence on the effects of shifting from contributory negligence to comparative negligence is weak.

Product liability in respect of drugs.

Two professors, one of law and the other of pharmacology, trace the development of English law on compensation for injuries caused by defective drugs and examine the Vaccine Damage Payments Act of 1980, which established a no-fault system of compensation for vaccine injuries for a limited number of diseases. They discuss two possible approaches to handling compensation for drug-induced injuries in the future--use of the law of "strict liability" or creation of a no-fault system. The authors propose a model no-fault scheme and urge that the principal interested parties develop such a no-fault system without waiting for government action.

What's wrong with the funding of cancer research?

is a strong feeling in New Zealand that such a scheme will come eventually. There is little pressure in Britain at the moment for creating a no-fault scheme for compensating disability. Indeed, consumer pressure groups are pushing in the opposite direction?towards an enhanced legal system?when it comes to compensation for product injury.7 My experience of the chaos in America?where strict liability prevails?convinces me that progress towards a full no-fault system could be much preferable.

Doctors, Damages and Deterrence

Damages awarded in a malpractice suit must be viewed not only as compensating the victim but also as deterring health-care providers from negligent behavior. Economic analysis of the malpractice system indicates that awards can send a signal to providers that informs them how much to invest in avoiding mishaps. The malpractice system is beset by difficulties, but not the ones commonly incriminated. The signal to the physician, as determined by the number of claims and size of awards ("expected damages"), appears to be insufficient for ideal deterrence. Moreover, the deterrence signal is attenuated because malpractice premiums are set for groups of physicians, not for individuals according to their record of previous malpractice incidents. Replacing the present tort system with a no-fault insurance scheme would not necessarily be cheaper, and might well abolish the deterrent signal or distort clinical decision making.

The Production of Court Services: An Analysis of Scale Effects and Other Factors

DURING the last few years the courts, both state and federal, have received an enormous amount of criticism regarding their performance, in particular, their large backlog of cases awaiting processing and the resultant delay from filing to disposition of cases. 1 In civil cases this can impose severe hardships on one of the parties. Indeed, in automobile personal injury cases this long delay has been one of the major arguments for removing such problems from the courts through the adoption of some form of no-fault insurance scheme. In criminal cases, it has been argued that the long delays blunt the deterrent effect of the criminal law.2 Also for those who cannot make bail, the delays may impose lengthy incarceration regardless of guilt. And even if the accused is not incarcerated the long delays give those who are guilty an opportunity to continue their criminal activities. Given this acknowledged concern regarding court performance it is particularly surprising how little empirical research has been carried out relating court delay to court resources and other factors affecting court productiv-

Delivering Legality: Some Proposals for the Direction of Research

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.