MRG Paper 24
MRG 7 Agenda Item 5
AN “AVOIDABILITY TEST” AS A POTENTIAL TEST FOR ELIGIBILITY TO
COMPENSATION IN ‘NO-FAULT’ OR OTHER ADMINISTRATIVE
SCHEMES
Introduction
The no-fault compensation working group has agreed to look at different
eligibility criteria that could be used in a potential ‘no-fault’ compensation
scheme, or other schemes as an alternative to medical negligence litigation
when harm has resulted from medical treatment or failure to treat. We know
from the research already carried out that such schemes, whilst referred to as
‘no-fault’ schemes apply certain qualifying criteria, even though there is not a
need to prove legal liability. This short paper will discuss the potential merits
or otherwise of the development of an “avoidability test” to establish eligibility
for compensation in any potential scheme in Scotland, with reference to
approaches adopted elsewhere. Action against Medical Accidents (AvMA),
have considered alternatives over the years and in particular in response to
the Chief Medical Officer for England’s, (Sir Liam Donaldson’s), request in
Making Amends (2003) for suggestions for an alternative to the ‘Bolam test’
for negligence. The concept of an “avoidability test” is the charity’s preferred
option.
The ‘Avoidability Test’
There are different variations of an ‘avoidabilty test’ already being used in
existing so-called ‘no-fault’ compensation schemes, or which are under
discussion. For example, the schemes in Denmark, Finland and Sweden use
a form of ‘avoidability rule ’ to determine eligibility for compensation under
their schemes. (See researchers’ interim report). In the Nordic countries’
schemes the trend is to consider whether the harm would have been avoided
by the use of ‘best’ practice. However, there are other criteria which also
come into play when determining eligibility for the schemes which may
significantly limit what would otherwise be very wide access to compensation.
In the USA, there have been calls for a system of ‘health courts’ to determine
which medical cases should be eligible for compensation, as an alternative to
litigation. President Obama was recently reported as being in favour of such
reforms. It has been proposed that the health courts would use an avoidability
test to determine eligibility. See the attached article by Mello et al (Harvard
Medical School, 2006) which provides a useful insight both into the arguments
for use of a avoidability test and for health courts as an administrative
alternative to litigation. Again, the definition of avoidability offered by the
authors centres on avoidability if the ‘best practice’ was followed.
AvMA have proposed another alternative to the ‘best practice’ kind of
avoidability test. This test incorporates the concept of ‘patient safety
incidents’. (Simply replace ‘patient safety incident’ with ‘adverse event’ if that
remains the preferred terminology in Scotland). “Patient safety incidents” are
defined by the National Patient Safety Agency (NPSA) as “any unintended or
unexpected incident which could have, or did, lead to harm for one or more
MRG Paper 24
MRG 7 Agenda Item 5
patients receiving NHS-funded healthcare”. In other words, they include ‘near
misses’ as well as incidents which led to harm to a patient. For the purposes
of this discussion, we are only concerned with where incidents have led to
harm. The setting could also apply just as much to private treatment as NHS
funded care. NPSA also define levels of harm as follows: ‘Low’: (Minimal
harm - patient(s) required extra observation or minor treatment); ‘Moderate’:
(Short term harm - patient(s) required further treatment, or procedure);
‘Severe’: (Permanent or long term harm);‘Death’: (Caused by the Patient
Safety Incident).
Under AvMA’s avoidability test cases where there has been a “patient safety
incident” resulting in harm to the patient, the criterion to determine eligibility
for compensation and/or other forms of redress would be:
“A patient safety incident resulting in harm to the patient is compensable
except where it is the result of an unavoidable complication which would
have arisen regardless of treatment or non-treatment “
AvMA believes the use of an avoidability test to determine eligibility for
compensation has significant advantages. For example:

It encourages a culture of patient safety and learning from incidents so
as to help avoid them. Every incident being considered for
compensation would also be investigated asking the questions “Could
we have avoided this, and if so how do we make sure we do in the
future?” Whereas, the litigation system forces the healthcare provider
to ask itself the question “Is there a credible defence that can be
mounted to this claim”.

It moves away from the blame culture/focus on pinning blame on
individual health professionals which is considered a hindrance to
improving patient safety and to openness and honesty when things go
wrong

It focuses on root causes and systems issues, meaning that one
investigation should result in the answers needed to help improve
patient safety as well as to whether or not someone deserves redress,
avoiding multiple investigations with different aims.

It is fairer. Most people would agree that someone who has suffered
avoidable harm in healthcare should be entitled to redress, and that if
something has gone wrong and harm is the result, the onus should be
on the healthcare provider to prove that the harm was unavoidable (if
that is what they believe). In litigation, all the burdon of proof, including
‘causation’, rests on the claimant.

It would drive quality improvement by making the acceptable standard
of practice the avoidance of avoidable harm rather than practice which
is not so bad as to be categorised as ‘negligent’
MRG Paper 24
MRG 7 Agenda Item 5
AvMA’s version potentially has further advantages in that it uses phraseology
/ definitions (‘patient safety incident’ or ‘adverse event’) which are currently
used in Scotland and other parts of the UK. This would make it simpler to
identify cases which should be considered for compensation under any
scheme and to align the scheme with existing work on patient safety.
It is a matter for debate, should the concept of an avoidability test of some
kind find favour at all, whether the ‘best practice’ and ‘experienced
practitioner’ criteria in use in Nordic schemes or the AvMA model is most
appropriate. Another issue is whether any additional qualifying criteria should
apply, such as seriousness of harm caused. If this were to be the case, the
levels of harm under the definition of ‘patient safety incident’ above might be
used.
Peter Walsh, March 2010.