The tort system of compensation for medical injury is the dominant legal remedy in most parts of the world. However, in modern health care this approach has become increasingly anachronistic and newer, fairer systems are being introduced.
In tort law, the claimant must take legal action to prove four elements: duty of care, injury, causation and negligence (that is, a standard of care that falls below that to be expected from the ordinarily competent practitioner). In most countries, suing for clinical negligence is the only available route for compensation for harm caused by medical treatment. The process also provides for censure of the errant doctor or institution, and may improve safety through clinical risk management.
But the tort system is in need of review because it is fundamentally unfair to patients and the adversarial process has become an obstacle to patient safety. It is also complicated and expensive: fewer than 20 per cent of medically harmed patients sue (most require legal aid to do so).
Less than one-quarter of actions are successful, and in 95 per cent of those cases the settlement is reached out of court. The costs of compensation and legal fees are enormous: in Britain this is expected to reach GBP8 billion (HK$124 billion) over the next 10 years. In the US, it may even account for up to 1 per cent of total gross domestic product by some estimates.
The system is also financially inefficient. For example, The National Audit Office in Britain reported in 2001 that for medium-sized claims that were settled for GBP50,000 or less, legal fees exceeded the damages awarded in two-thirds of instances. The process is time-consuming; more than five years on average for settlement in Britain.
Most claims are for death and injury arising from surgery (38 per cent), misdiagnosis (30 per cent), complications from drugs (10 per cent) and brain damage at birth (10 per cent). But litigation is not all about money. Plaintiffs are often angry at the barriers put up by the medical establishment, and common reported themes of motivation include the seeking of an apology, an explanation of what happened and reassurance that preventive measures would be taken.