International medical liability systems —
A comparative view
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S E R I E S
INTRODUCTION
The first paper in this series described the current Canadian medical liability
system and how it responds to adverse medical events in three separate
ways by:
A TORT-BASED
compensation system…
Identifying the event's cause so as to reduce the number of future
events (patient safety);
requires the claimant to
Determining and resolving the responsibility of individual provider(s) in
relation to the adverse event (accountability); and
prove harm was caused
Compensating those patients who were injured as a result of provider
negligence.
by a breach of the duty
It noted the system works most effectively when there is an appropriate
balance between the three separate but related processes of patient safety,
physician accountability and patient compensation. The paper also outlined
the differences between the disclosure of adverse events to patients and
the reporting of these events to assist patient safety and to meet
accountability and compensation requirements. It also highlighted the
importance of fully protected reporting in a patient safety environment and
legally prescribed reporting in accountability and compensation
circumstances.
The first paper closed by noting that:
of care.
In a NO-FAULT
compensation system…
compensation is
while the Canadian system generally works effectively, alternative
models including”no-fault” systems exist and are in place in other
countries; and
provided in response to
contrary to the experience of some countries that are experiencing
difficulties with their medical liability systems, Canada has largely
avoided the problems identified in other jurisdictions.
matter who or what
This paper, the second in the series, will examine international experience
and identify possible lessons for Canada.
International medical liability systems
the event; it does not
caused the event.
June 2006
THE MEDICAL LIABILTY ENVIRONMENT
OUTSIDE CANADA
The current state of medical malpractice protection is of serious concern to many governments,
medical organizations, physicians and patients around the world. The Organization for Economic
Cooperation and Development's (OECD) research suggests that in many countries, a supply ”crisis”
for medical malpractice insurance is reducing citizens' confidence in their health care systems. The
OECD research covers a wide range of countries with different medical liability models (commercial
insurance, mutual defence, government-run schemes, etc.) which are experiencing:
a rise in medical malpractice claims;
an increase in premium rates;
insolvency of both mutual medical defence organizations and commercial insurers; and
challenges faced by physicians and other health care providers in obtaining appropriate liability
protection.
MEDICAL LIABILITY MODELS IN SELECTED COUNTRIES
In an effort to learn from international experience, the CMPA commissioned the independent firm
of Secor Consulting to examine representative medical liability models in countries to which
Canada is frequently compared. This comparative study included France, New Zealand, Sweden,
the United Kingdom and the United States.
FRANCE
practice. This appears to have impacted
negatively on the number of specialists. While the
introduction of elements of no fault has diverted
a large number of cases from the insured system,
it does not seem to have resulted in reductions in
insurance premiums.
The French health care system is often touted as
being one of the world's best and it is certainly
one of the most accessible. Medical care is, for
the most part, available without user fees and all
citizens can access a wide choice of private and
public providers.
The French medical liability system is complex and
is composed of elements of both no-fault and
fault approaches:
Recently however, the French system underwent
considerable change over a relatively short period
of time, which created a degree of uncertainty
that led to an exodus of insurance providers and
an increase in the cost of protection, particularly
for specialist physicians working in private
International medical liability systems
A no-fault system is in place for injuries
resulting in an ”invalidity” of at least 25 per
cent when either no fault is declared by a
regional commission or when the injury is the
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June 2006
severe" restriction. The ACC will now consider
"treatment injuries" which includes both serious and
minor injuries caused during health care treatment.
Accordingly, from a compensation perspective, these
changes result in a system that is "no fault" in nature.
At this early stage, it is not possible to predict the
exact financial impact of this change although the
ACC has forecast that the number of claims will rise
by 50%. However, given the strong social welfare
system in place, these costs may be manageable.
result of nosocomial infection. L'Office National
d'Indemnisation des Accidents Médicaux (l'ONIAM)
is responsible for no fault payments.
It is the physician's responsibility to demonstrate to
the regional commission that the injury was not
caused by the physician's actions.
The injured patient has access to civil, criminal,
administrative and professional tribunals.
Within both the fault and no-fault systems, patients
have the right to refuse a compensation offer and
seek judicial resolution of the indemnification amount.
Physicians within the public system have their liability
insurance premiums paid by their institution, while
physicians within the private system must pay their
own premiums.
While the recent changes appear to address some of
the procedural fairness that was previously lacking in
the New Zealand system, given that physicians and
other providers are still subject to accountability
frameworks, one cannot label it as being truly no fault.
It is also too early to tell how these recent changes will
impact patient safety initiatives.
NEW ZEALAND
New Zealand has a parallel system of public and
private health care in which individuals pay for private
care. The New Zealand system differentiates between
health issues arising from accidents from those that do
not, with the former being subsidized by the Accident
Compensation Corporation (ACC). The ACC is a
national insurance program that covers all bodily
accidents caused by workplace, automobile, medical
treatment and other exceptional incidents.
SWEDEN
In Sweden, the provision of health care is a public
sector responsibility, one largely executed by 21 locally
elected county councils that depend on taxation for
the necessary funds. Patients over the age of 20 pay
small patient care fees, but these are limited to a
maximum of approximately $150 per year. Universal
health care forms but one part of an extensive social
welfare program in Sweden and benefits provided to
injured patients, through the medical liability system,
form a ”top-up” to this extensive system. When
considered in isolation, the Swedish medical liability
system is relatively inexpensive but these costs should
be viewed within the circumstances of the extensive
social support framework.
While often described as a "no fault" system, the New
Zealand model most often includes significant
elements of fault-finding. Also, by combining patient
safety, physician accountability and patient
compensation into one process, the New Zealand
system had until recently created inherent conflicts of
interest. Recent changes separating the patient
compensation deliberations from the accountability
process have at least partly addressed these conflicts.
To warrant compensation, the adverse outcome must
have been ”unintended and avoidable,” with the test
being whether an experienced physician would have
achieved a different result and, through this process,
provider fault is often inferred. Just under half (45 per
cent) of medical liability claims are approved and,
while an appeal process exists, this appears to be used
in only 10 per cent of the rejected claims. The
compensation system is supported by a separate
patient safety/risk management effort and by a
separate accountability framework.
Until July 2005, unless the medical injury was a rare
and severe complication, the injured party had to
establish fault (as determined by the ACC) to receive
compensation. Under this process, approximately 60%
of medical liability claims were rejected. Despite both
this rejection rate and the relatively low level of
compensation paid to patients, the per capita cost of
the New Zealand system was, in 2003, approximately
15% higher than that of Canada.
The social welfare network greatly impacts the
Swedish medical liability system in that compensation
to injured patients represents only a top-up of the
On July 1, 2005, legislation removed the requirements
for both the determination of fault and the "rare and
International medical liability systems
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and analysis of adverse events in the NHS with the
goal of improving clinical risk management.
generous benefits available to Swedish citizens.
However, this situation is largely confined to
Sweden (and the other Nordic countries) and such
comprehensive benefits are not characteristics of
the social welfare systems in other countries
including Canada.
THE UNITED STATES
The United States spends more on health care than
any other country in the world , due in part to
higher drug, hospital and physician services costs.
While Medicaid and Medicare provide health
insurance to elderly Americans and those with low
incomes, the majority of health care is provided
through private insurance, largely provided by
employers. The challenges faced by persons
without adequate health care insurance and the
associated difficulties in obtaining care are well
publicized.
THE UNITED KINGDOM
Health care in the United Kingdom is largely
provided through the publicly-funded National
Health Service (NHS) although patients have the
option of paying for private care through either
private insurance or personal resources.
Increasingly, decision-making authority is being
devolved to local levels and the private sector is
playing a greater role in health care delivery, often
through the operation of NHS facilities.
Multiple factors are contributing to a situation in
which medical liability costs have increased. The per
capita rate of medical litigation in the United States
As is the case in Canada, the medical liability
is significantly higher than it is in Canada. While the
system is tort-based. National Health Service (NHS)
average compensation payment
Trusts manage public hospitals and
appears by some studies to be
clinics and a government body
slightly less than it is in Canada, in
called the NHS Litigation Authority
Multiple factors are
the United States such payments are
(NHSLA) is responsible for
”insuring” all work done in the
contributing to a situation in recorded per defendant (there are
frequently multiple defendants)
Trusts on the basis of unfunded
which medical liability costs
while in Canada, those payments
liabilities that are carried on the
are recorded by the CMPA on a per
Crown's ”books.” Three medical
have increased.
case basis, regardless of the number
defence societies provide medicoof member defendants. The
legal protection and advice to
difference in the relative number of
physicians in private practice. While
claims contributes to significantly increased liability
there are distinctions based on the competitive
costs. Given the litigious U.S. medical liability
landscape, these mutual defence societies operate
environment, defensive medicine is also assessed as
in a manner similar to that of the CMPA in
adding significant costs to the overall health care
Canada. For example, in addition to providing
system. There are however conflicting views as
protection, they also provide assistance to
to the extent to which reforms would reduce
members facing accountability inquiries through
overall costs.
the regulatory body (the General Medical Council)
and offer some medico-legal risk management
The U.S. malpractice environment is also
services. The NHSLA does not assist with such
characterized by a fragmentation of medical
inquiries and many physicians working in the NHS
liability insurance providers, most of which are
Trusts choose voluntarily to join one of the three
state based. In January 2006, the American
mutual defence societies as well.
Medical Association considered 21 states as being
in a medical liability crisis wherein the cost and/or
While the medical liability system appears to be
availability of liability protection was negatively
working effectively, costs are on the rise and the
affecting the supply of physicians, particularly in
government-run NHSLA is developing rapidly
high-risk specialties.
growing future liabilities. Currently patient safety
efforts are largely aimed at improving the reporting
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LESSONS FROM THE INTERNATIONAL ENVIRONMENT
A systems approach
A review of the international environment shows
that health care is an especially complex system
made up of interdependent sub-systems and that
adjusting one element of the system inevitably
leads to changes elsewhere. Review also shows
that medical liability protection is an integral part
of the overall system that does not exist in a
vacuum, but instead is inextricably linked to
physician supply, overall costs, the organizational
framework for clinical care and other elements of
the health care delivery mechanism.
a progressive but evolutionary approach to
system change.
Limitations in transportability
While the international review, as completed by
Secor Consulting, highlighted certain practices that
should be avoided, it did not identify a single ”best
practice” model that could be transported or
”plugged in” to Canada. To be successful in
Canada, as in any other country, a medical liability
model must fit into the country's health, social,
legal and cultural environment — since medical
liability makes up an important part of every health
care delivery system.
The French experience highlights the dangers of
making reforms that are not informed and
As an example, the Swedish model appears to
tempered by a full understanding of the systemwork well within that jurisdiction as it forms one
wide implications of the intended
element of an extensive social
changes. The uncertainty created by
welfare safety net. The Swedish
It is human nature to
significant change has reduced the
model cannot however be viewed in
availability of liability protection for
want to know what
isolation from that wider context and
specialist physicians.
there could be significant
went wrong and who
consequences of assuming that the
The American example provides
Swedish model is easily transportable
ample evidence that escalating
or what was to blame.
to other jurisdictions.
liability protection costs negatively
impact the supply of specialist
It is more appropriate to examine individual
physicians and contribute to such undesirable and
elements of other models from a perspective of
costly practices as defensive medicine.
how they might be adapted to work within the
Canadian context rather than as a replacement for
No one model is inherently superior in terms of
the system that has proven to be reasonably
support to patient safety and the impact on patient
successful here. This entails an approach that
safety appears to vary based on the emphasis
builds on our existing foundations, and
placed by the various stakeholders involved. As an
applies international lessons only where and
example, in the United Kingdom, improvements to
when appropriate.
data sharing and other patient safety initiatives led
by the National Patient Safety Agency (NPSA)
The myth of no fault
should have a positive impact, but there is no
The international review reveals there are no
evidence to suggest the litigation authority model
”pure” no-fault systems operating within the
provides any advantage in this regard.
medical liability arena. The so-called ”no-fault”
These experiences suggest that changes should be
medical liability systems all include a significant
well-considered not only from the perspective of
aspect of fault determination and multiple
their direct impact on liability protection, but also
investigations of individuals' professional practices,
in terms of their consequential impacts on other
sometimes without the same elements of due
elements of the system. In all but the most
process that characterize the Canadian model. For
pressing circumstances, this experience demands
example, the New Zealand and Swedish models are
often described as being “no fault” but both
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include a substantial element of physician fault
finding. There are likely a number of factors that
contribute to this reality:
It is human nature to want to know what went
wrong and who or what was to blame.
Unless patient compensation schemes are
prepared to compensate all patients with an
adverse medical outcome — whether
unavoidable or avoidable — it becomes
necessary to determine what is an ”avoidable”
outcome.
Self-regulating professions, such as medicine,
require a mechanism to ensure that all of their
members adhere to established standards of
practice. Inherent in the maintenance of
professional standards is the ability to identify
fault and, when appropriate, take remedial
action (additional training, discipline, loss of
privileges, etc.).
CONCLUSION
Many other nations consider the Canadian medical liability system to be a world-class model and
surveys of other jurisdictions reinforce this conclusion.
Nevertheless, examining other models to determine
elements that might be integrated into the
Canadian system is a valuable means of identifying
possible improvements. At the same time, it is
obvious that transporting a system from one set of
complex and integrated circumstances to another
different context, is fraught with danger.
The results of that examination will reinforce the
wisdom of an evolutionary approach to system
improvement and highlight the unintended and
potentially negative consequences of making
fundamental change without taking due
consideration of the intended and unintended
consequences of such changes into account.
In the next paper in this series we will examine the
potential results that might flow from applying
these international and other alternatives to the
Canadian context.
TOWARDS
THE RIGHT BALANCE
L E A R N
M O R E
To learn more about the Canadian medical liability system, you can read our
position paper Medical liability practices in Canada: Towards the right balance. Go
to our website, www.cmpa-acpm.ca, then go to CMPA publications, General
documents, Position papers and submissions.
International medical liability systems
Mailing Address: P.O. Box 8225, Station T, Ottawa, ON K1G 3H7
Street Address: 875 Carling Ave., Ottawa, ON K1S 5P1
Telephone: 613-725-2000, 1-800-267-6522
Facsimile: 1-877-763-1300 Website: www.cmpa-acpm.ca
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Adresse postale : C.P. 8225, Succursale T, Ottawa ON K1G 3H7
Adresse civique : 875, av. Carling, Ottawa ON K1S 5P1
Téléphone : 613-725-2000, 1-800-267-6522
Télécopieur : 1-877-763-1300 Site Web : www.cmpa-acpm.ca