No-fault System Research Articles

Inequality of Luck: Accident Compensation in New Zealand and Australia

The romance and liberating effects of the rise of the modern transport and industrial systems have attracted more attention than how accident victims, and their dependents, coped. Every modern society has a system of dealing with “blood on the bitumen” and “coming a gutser” at work or elsewhere but New Zealand is conspicuous in developing a no-fault comprehensive accident compensation system. About the same time, Australia had draft legislation before its legislature that included sickness too. Only New Zealand, however, in 1974, overturned common law and other remedies to institute a radical law reform over “accidents.” This paper considers the failure of policy transfer between New Zealand and Australia on this issue. More generally there has been relatively little historiographical interest in social experiments “down under,” or the expansion in the late twentieth century welfare states, despite the current public policy debate over an Australian disability scheme. It is argued that such expansions of the welfare state, such as no fault accident compensation, are awkward developments for the dominant neoliberal model of the state undermining welfare. With the Australian Labor government implementing its National Disability Insurance Scheme (2012), which will provide some people with disabilities care and support over their lifetimes, it is timely to consider earlier attempts, and failures, to implement wide-ranging compensation schemes. Most notably, Gough Whitlam’s government attempted a national scheme in 1975 that followed the implementation in 1974 of the no-fault accident compensation scheme in New Zealand. In this article I consider the failure of antipodean policy transfer over this issue in the 1970s. I also consider why labour historians have neglected the topic of late twentieth century welfare state expansion of accident compensation.

The Impact of No-Fault Legislation on Automobile Insurance

Since its inception, the effectiveness of no-fault legislation has been highly debated. Although some research suggests that no-fault laws are effective in reducing costs, other evidence suggests that the current no-fault systems may not meet the original objectives. This study provides a detailed assessment of the relation of no-fault laws and automobile insurance losses for the period 1994 to 2007. By examining total automobile insurance losses along with liability and personal injury protection losses, we are able to determine if and how specific provisions of the laws are related to claims costs. We find a negative relation between the presence of a no-fault law and total losses, which suggests that no-fault systems are associated with lower losses than the traditional tort system. In addition, an examination of no-fault-only states suggests that specific provisions of no-fault laws, such as thresholds and limitations on benefits, have some effect on losses. With the sunset of Colorado’s no-fault legislation in 2003, the recent passage of Personal Injury Protection Reform in Florida, and proposed federal choice legislation, the overall impact of no-fault as well as the specific components of the laws are of heightened importance to consumers, insurers, and lawmakers.

Child Support System of Australia

Child Support System of Australia

Evolving Medicolegal Concepts: Editorial Comment

Evolving Medicolegal Concepts: Editorial Comment

What can we learn from patient claims? - A retrospective analysis of incidence and patterns of adverse events after orthopaedic procedures in Sweden

BackgroundObjective data on the incidence and pattern of adverse events after orthopaedic surgical procedures remain scarce, secondary to the reluctance for encompassing reporting of surgical complications. The aim of this study was to analyze the nature of adverse events after orthopaedic surgery reported to a national database for patient claims in Sweden.MethodsIn this retrospective review data from two Swedish national databases during a 4-year period were analyzed. We used the "County Councils' Mutual Insurance Company", a national no-fault insurance system for patient claims, and the "National Patient Register at the National Board of Health and Welfare".ResultsA total of 6,029 patient claims filed after orthopaedic surgery were assessed during the study period. Of those, 3,336 (55%) were determined to be adverse events, which received financial compensation. Hospital-acquired infections and sepsis were the most common causes of adverse events (n = 741; 22%). The surgical procedure that caused the highest rate of adverse events was "decompression of spinal cord and nerve roots" (code ABC**), with 168 adverse events of 17,507 hospitals discharges (1%). One in five (36 of 168; 21.4%) injured patient was seriously disabled or died.ConclusionsWe conclude that patients undergoing spinal surgery run the highest risk of being severely injured and that these patients also experienced a high degree of serious disability. The most common adverse event was related to hospital acquired infections. Claims data obtained in a no-fault system have a high potential for identifying adverse events and learning from them.

A unique drug-injury relief system in Taiwan: comparing drug-injury compensation in different countries

Taiwan operates a unique no-fault compensation-based scheme for injuries caused by medication use. This article describes the operation of the Taiwan Drug Relief Foundation and some results since the Taiwan Drug Hazard Relief Act was enacted in 2000. We also briefly review similar no-fault compensation systems in Germany, Japan, New Zealand and Nordic countries. The existence of these schemes provides timely relief and compensation to victims by avoiding the otherwise lengthy court process; however, medication safety education and applied pharmacogenomic and pharmacoepidemiological research are future aspirations to proactively address and prevent drug-induced injuries.

Fault, Gender Politics and Family Law Reform

Recent public debates about family law reform have revealed both support for and criticism of legislative policies that seek to shape social norms. Amidst this debate was a suggestion from some quarters that the Whitlam Government's removal of fault‐based divorce is responsible for the gendered tensions that characterise modern reform debates. This article draws on archival records and interviews conducted with family law professionals who worked in the system in the 1970s and experienced the transition to the no‐fault system, to explore the principles underlying the introduction of the Family Law Act of 1975 and to identify the sources of continuing dissension about its impact.

Social Networking and Workers’ Compensation Law at the Crossroads

Over the past decade, social networking has increasingly influenced the practice of both civil and criminal law. One way to illustrate those influences is to examine a “system” of laws and the parties and lawyers in that system. In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems. Workers’ compensation laws are no-fault insurance systems designed to resolve disputes efficiently. Consequently, the rules of evidence are often more relaxed and the rules of discovery often more restricted than in state and federal court litigation. The flexible and self-contained structure of workers’ compensation systems provides an ideal backdrop against which to examine how information from social networking sites can be used as evidence to resolve civil disputes. A state’s workers’ compensation system should use the rules that have traditionally applied to non-electronic information as a starting point to address issues arising from lawyers gathering and introducing into evidence information stored on social networking sites. At the same time, because of the efficiency of workers’ compensation law and the large discretion vested in its judges, workers’ compensation systems have the potential to be laboratories for new technologies and how they can be used in the resolution of disputes, both inside and outside of workers’ compensation.

Hospital Cost Shifts As A Result Of Changes In Auto Insurance Regimes

<p class="MsoBlockText" style="text-align: justify; margin: 0in 0.5in 0pt;"><span style="font-style: normal; font-size: 10pt; mso-bidi-font-size: 12.0pt; mso-bidi-font-style: italic;"><span style="font-family: Times New Roman;">This paper seeks to determine if moving from a no-fault auto insurance system to a tort system will necessarily result in hospitals being faced with more unpaid bills. The answer is found to depend upon legal regulation of the medical insurance industry, the percent of drivers operating without auto insurance, the proportion of drivers who are without medical insurance and the percent of drivers who purchase Med Pay. </span></span></p>

A Review of Medicolegal Malpractice Suits Involving Cervical Spine

Utilizing Verdict Search (East Islip, New York), a medicolegal research service for civil and criminal court cases, 78 cervical spine surgical malpractice suits were identified (10-year period). Factors leading to cervical spine surgical litigation may represent an untapped source of risks/complications associated with these operations. Data with fewer adverse events are submitted to and/or published in spine journals, as they are discoverable in a court of law. Cervical spine surgery in 68 patients included 48 anterior operations (1 to 4 level anterior diskectomy/fusions, 1-level corpectomy/fusion). Twenty patients had posterior surgery (7 fusions, 13 laminectomies with/without fusions). Two patients had other operations/procedures, whereas 8 had no surgery. Four major questions were asked; (1) What were the operations/neurologic deficits that led to the suits?, (2) Who was sued?, (3) What purported and/or alleged "malpractice" events prompted the suits?, and (4) What were the outcomes of these suits? Postoperative neurologic deficits that led to suits included quadriplegia in 41 patients (21 anterior, 20 posterior operations). Other injuries/lesser postoperative deficits were observed in 15 patients, whereas 22 had pain alone. Malpractice suits involved 63 spine surgeons, whereas 15 did not. The 3 most common malpractice events prompting cervical suits, and typical for most surgery-related suits, included negligent surgery, lack of informed consent, and failure to diagnose/treat; the fourth unanticipated factor was failure to brace. Outcomes for these suits included 30 defense verdicts (10 quadriplegic patients), 22 plaintiffs' verdicts (average payout $4.0 million dollars), and 26 settlements (average $2.4 million dollars). Data gleaned from medicolegal suits may provide additional information regarding the morbidity associated with cervical surgery. These data may lessen patients' expectations, and limit spine surgeons' liability. In the future, consideration may be given to tort reform, or a No-Fault malpractice system.

Patient Compensation Without Litigation: A Promising Development

Editorials17 August 2010Patient Compensation Without Litigation: A Promising DevelopmentA. Russell Localio, JD, PhDA. Russell Localio, JD, PhDFrom University of Pennsylvania School of Medicine, Philadelphia, PA 19140.Search for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-153-4-201008170-00010 SectionsAboutFull TextPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail In 1977, Bernzweig (1) eloquently outlined the severe dysfunction in the United States' fault and no-fault injury compensation systems. Although recent legislation seeks to promote patient safety through confidential error reporting (2), the dysfunction persists, and initiatives to compensate injured patients are lacking (3). Advocates of “reform” focus on laws to limit medical liability insurance premiums and costs of the practice of defensive medicine. Common statutory changes, which neglect the predicament of injured patients, are caps on payments for pain and suffering. These caps range about 6-fold across the 50 states, and California's cap, fixed at $250 000 in 1975, has ...

Analysis of birth‐related medical malpractice litigation cases in Japan: Review and discussion towards implementation of a no‐fault compensation system

We examined birth-related malpractice civil litigation cases in Japan to clarify the actual status related to the implementation of an obstetrical no-fault compensation system in 2009. In this retrospective review, we analyzed legal and medical information from 64 cases with a delivery date after 1987 and a judgment date between April 1997 and March 2007. The malpractice claim was accepted in 44 cases and rejected in 20 cases. The period from the delivery to the judgment date was lengthy (90.1 months overall). The average amount of damages awarded was yen97 810,000 for cases of cerebral palsy (CP). Preterm births and less than 2500 g infants represented a higher incidence rate in the rejected cases. There were 32 cases (50.0%) with CP, 18 (28.1%) with infant death, 10 (15.6%) with neonatal death, and 4 (6.3%) with fetal death. Twenty-three of 44 accepted cases (52.3%) and 11/20 rejected cases (55.0%) had a gestational age of more than 33 weeks at birth and weighed more than 2000 g. Forced deliveries were performed in 45/64 cases (70.3%), and augmentation/induction of labor was performed in 28/64 cases (43.8%). There were 13/16 (81.3%) accepted cases that underwent vacuum and/or forceps extraction after labor augmentation/induction. More than half of our cases could be sufficient for a no-fault compensation system in Japan. Though the system is considered to have some problems that need to be solved, this finding suggests that many children and their families may benefit from the new system without having to file.

A medico-legal review of cases involving quadriplegia following cervical spine surgery: Is there an argument for a no-fault compensation system?

Background:To determine whether patients who become quadriplegic following cervical spine surgery are adequately compensated by our present medico-legal system. The outcomes of malpractice suits obtained from Verdict Search (East Islip, NY, USA), a medico-legal journal, were evaluated over a 20-year period. Although the present malpractice system generously rewards many quadriplegic patients with substantial settlements/ Plaintiffs' verdicts, a subset receive lesser reimbursements (verdicts/settlements], while others with defense verdicts receive no compensatory damages.Methods:Utilizing Verdict Search, 54 cases involving quadriplegia following cervical spine surgery were reviewed for a 20-year interval (1988–2008). The reason(s) for the suit, the defendants, the legal outcome, and the time to outcome were identified. Operations included 25 anterior cervical procedures, 22 posterior cervical operations, 1 circumferential cervical procedure, and 6 cases in which the cervical operations were not defined.Results:The four most prominent legal allegations for suits included negligent surgery (47 cases), lack of informed consent (23 cases), failure to diagnose/treat (33 cases), and failure to brace (15 cases). Forty-four of the 54 suits included spine surgeons. There were 19 Plaintiffs' verdicts (average US $5.9 million, range US $540,000-US $18.4 million), and 20 settlements (average US $2.8 million, range US $66,500-US $12.0 million). Fifteen quadriplegic patients with defense verdicts received no compensatory damages. The average time to verdicts/settlements was 4.3 years.Conclusions:For 54 patients who were quadriplegic following cervical spine surgery, 15 (28%) with defense verdicts received no compensatory damages. Under a No-Fault system, quadriplegic patients would qualify for a “reasonable” level of compensation over a “shorter” time frame.

Compensation, Ideology and Patient Safety in New Zealand's No-Fault System

As the idea of no-fault compensation for medical injuries attracts increasing attention in Europe, the experience of the New Zealand Accident Compensation Scheme offers an educational case history. This paper traces the different phases of the Scheme's approach to compensating medical injuries, and considers the rival ideologies underlying the divergent approaches adopted and what they say about the methods that consecutive governments have employed in order to secure patient safety.

The Motor Insurance Industry in Kenya: Adopting the No-Fault Insurance System

This research paper seeks to evaluate the Kenyan insurance industry which is based on the fault law, its shortcomings and the applicability of the no fault system to cure the ills of the fault insurance regime in this country. The study will also heavily refer to the New Zealand no fault law. The choice of reference for New Zealand is informed by the commonalities of the common law legal system in Kenya and New Zealand and the population of both countries. The fault insurance is always said to be a social symbol, a cultural mirror that reflects the morals of society. It focuses on the party at fault. The no-fault system on the other hand is an administrative remedy that is largely devoid of a moral content. This system is used to describe any type of insurance contract under which insured persons are indemnified for losses by their own insurance company, regardless of fault in the incident generating losses. Thus the injured parties are compensated by the insurance companies without proof of fault. They are also restricted in the right to seek recovery through the civil justice system for losses caused by other parties. The main goal of the no-fault insurance is that of lowering premiums costs by avoiding expensive litigation over the causes of accidents, while providing quick payments for injuries. In that regard this research paper will mainly focus on the two systems, identifying the pros and cons of each system and finally recommending which system would be suitable for Kenya. In some instances however, the two systems can be used interchangeably. In uncertainties, the standard liability procedure can be invoked or the courts can be allowed to handle cases in instances where the damages exceed a certain amount. This study will also evaluate this option in regard to the Kenyan industry. This research paper will seek to review the place of the injured party both under the fault and the no fault systems and the adequacy of damages in both instances and then provide the way forward. The main basis for the recommendation of adoption of the no fault system stems from the fact that, the no-fault system provides for prompt payment to accident victims regardless of how the accident happened or who was at fault. Unlike the current insurance regime in Kenya where an injured party has to file a suit to recover damages in regard of a motor accident, the no fault system offers faster settlement of damages and is more efficient as it avoids delays, expenses in litigation and uncertainty. In Kenya for example, seriously injured victims are collecting nothing from the insurance industry and most are getting inadequate compensation after several years of attending court hearing.

The Proformas of the No-fault Compensation System :Considerations Regarding the “Obstetrical Medical Care Compensation System”

「産科医療補償制度」の目的は, 以下の3点である. (1)分娩に関連して発症した脳性麻痺 (CP) の児・家族の経済的負担を補償すること, (2)CPの原因分析, 将来のCPの予防, (3)紛争防止, 早期解決, 産科医療の質の向上.〈考察〉1) 補償の範囲: 除外基準があり, 補償の対象とならないCP児が多く存在する可能性が高い. 2) 契約について: 各医療機関の事務的手続きが増大. 患者・家族はすべて補償を受けられると勘違いして, さらに紛争が増加する懸念がある. 3) 保険料徴収と補償の支払時期にさらなる配慮が必要.〈まとめ〉現在, 無過失補償制度の創設が求められている. その総論的概念には異論の余地は少ない. しかしながらその制度設計を煮詰めていくうえで, 「産科医療補償制度」を検証することは, 価値があるといえる.

Swine Flu Vaccine: What Is Fair?

Swine Flu Vaccine:What Is Fair? Lawrence O. Gostin (bio) Anovel strain of influenza A (H1N1)—so-called swine flu—spread through Mexico in April 2009, and by June 11th, the World Health Organization raised the alert level to a full-blown pandemic.1 The virus spread widely during the Southern hemisphere's regular flu season, with the Northern hemisphere bracing for its peak flu season. The United States continues to report the largest number of cases of any country worldwide. The surprisingly rapid global transmission has focused political attention on developing an effective vaccine. Australia initiated the first vaccine trials in July, followed by Europe and the United States. Finding a medical solution to this threat is attractive but also raises questions of fundamental fairness. Cost Comparisons In 2009 Congress authorized $7.65 billion in spending for the Department of Health and Human Services, the vast majority of which is for therapeutic interventions such as vaccine development and distribution and stock-piling of the antiviral Tamiflu. This funding, together with private spending and the more than $7 billion federal authorization for research and development on and medical interventions for influenza A (H5N1)—avian flu—amounts to a windfall for the pharmaceutical industry. Roche has reported that sales of Tamiflu have tripled, and GlaxoSmithKline predicts huge profits from a vaccine.2 Politicians on all sides of the spectrum support large expenditures, but it is not obvious that novel influenza should be such a high resource priority. Human-to-human transmission of H5N1 is rare, with only a small number of human cases and deaths worldwide.3 Although H1N1 is widespread, the first wave was not highly pathogenic; it caused far fewer deaths than seasonal influenza, which kills some thirty-six thousand Americans and up to five hundred thousand globally each year. And even the number of deaths pales in comparison to those caused by chronic diseases such as diabetes, coronary heart disease, and respiratory disease.4 But while government falls over itself to fund therapeutic interventions for exotic infections such as anthrax, SARS, and novel strains of influenza, it continues to chronically underfund more cost-effective public health services. Approximately 2 percent of total health expenditures goes to prevention and population-based services. The political dilemma, of course, is that H1N1 could mutate—through re-assortment with H5N1, for example—rendering it much more lethal. We should recall that the first wave of the 1918 Spanish flu, which killed some fifty million people in a much less populated world, was relatively benign. It is that slight but serious potential that has the public and health officials concerned. Research: Detecting Adverse Events Clinical trials of swine flu vaccine have enrolled relatively few human subjects and are being conducted in a compressed time frame. In Australia and Europe, there are calls to truncate the research even further and to fast-track the vaccine. In the United States, initial trials are being conducted on healthy adult volunteers, including the elderly, followed by children as young as six months and pregnant women, who are at higher risk. The problems of obtaining informed consent among participants with limited capacity can probably be managed. More worrying is the inability of small trials to detect rare but serious adverse effects that cannot be fully understood until the vaccine is rolled out to a mass population. Although the first trials did not use adjuvants that stimulate the immune system, these may be necessary to stretch the vaccine supply, even though they cause more side effects. For its part, the Food and Drug Administration will be under public and political pressure to quickly approve vaccines without large clinical trials for safety and effectiveness. Also, the FDA has never approved a human vaccine containing adjuvants, which could increase the complexity of its decision.5 When the vaccine is marketed, key issues involving liability protection for manufacturers and fair compensation for patients will become paramount. The industry will insist on protection, as well as economic incentives from government. And patient groups will call for inclusion in the no-fault vaccine compensation system. Just Allocation Effective vaccines will almost certainly be scarce—the antigen yield for candidate vaccines may be much lower...

MEDICAL INJURY COMPENSATION: BEYOND 'NO-FAULT'

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.

No-fault compensation systems

In a series of recent articles about no-fault compensation, CMAJ raised important questions regarding the Canadian medical liability system.[1][1]–[3][2] However, the length of these articles did not permit a full discussion of the issues, which are complex. In consequence, readers may have drawn

A Modified No-fault Malpractice System Can Resolve Multiple Healthcare System Deficiencies

Medical professional liability in the United States, as measured by total premiums paid by physicians and healthcare facilities, costs approximately $30 billion a year in direct expenses, less than 2% of the entire annual healthcare expenditures. Only a fraction of those dollars reach patients who are negligently injured. Nonetheless, the tort system has far-reaching effects that create substantial indirect costs. Medical malpractice litigation is pervasive and physicians practice defensively to avoid being named in a suit. Those extra expenditures provide little value to patients. Despite an elaborate existing tort system, patient safety remains a vexing problem. Many injured patients are denied access to timely, reasonable remedies. We propose a no-fault system supplemented by a variation of the traditional tort system whereby physicians are incentivized to follow evidence-based guidelines. The proposed system would guarantee a substantial decrease in, but not elimination of, litigation. The system would lower professional liability premiums. Injured patients would ordinarily be compensated with no-fault disability and life insurance proceeds. To the extent individual physicians pose a recurrent danger, their care would be reviewed on an administrative level. Savings would be invested in health information technology and purchase of insurance coverage for the uninsured. We propose a financial model based on publicly accessible sources.