Journal of Health Services Research & Policy >
Volume 13, Number 4 >
Pp. 193-194
Editorial |
Both administrative and tort law-based systems have at their heart lay adjudication. They give weight to lay opinions about evidence and priorities and, depending on reporting arrangements, both introduce some degree of transparency into professional peer review and disciplinary processes. This contributes to both systems being vulnerable to defensive practice.
Defensive practice is a response, by providers, to the expected costs of complaints or litigation. It is typically manifest as health care professionals changing their practice to reduce their anticipated liability, perhaps by engaging in additional but clinically unnecessary procedures or by selecting low-risk patients.3 Reluctance to admit or report errors can also be classified as defensive behaviour, since it too results from systemic incentives and might reflect a desire to minimize the likelihood of complaints or of being found responsible in the event of a complaint.4 Defensive practice potentially undermines the delivery of high quality clinical care by its direct impact on practice, although it is important to note that there is some evidence suggesting there is no direct adverse impact on health outcomes per se.5 Defensive practice also undermines quality improvement initiatives based on learning, by increasing the expected costs of reporting errors.4
Defensive practice is generally discussed as an unintended consequence of tort law-based systems, which attach liability to adverse events in order to give practitioners an incentive to take precautions. However, empirical evidence shows that both types of system are vulnerable.6 Financial incentives are not confined to tort systems, since they also ‘bite’ when administrative systems are funded by experience-rated levies or practitioners incur costs when defending complaints. Moreover, it is important to recognize that in both systems practitioners’ ex ante assessments of the non-financial costs associated with complaints or litigation may have a significant impact on their behaviour.5 Non-financial costs include time, stress, anxiety and reputation effects. (Indeed, financial costs may be relatively unimportant when practitioners have insurance against the financial consequences of complaints or cases.)
Practitioners’ assessments of expected costs, both financial and non-financial, depend crucially on their beliefs about whether a judgement will be fair and objective. It is rational to have some degree of mistrust in adjudication systems, whether court or administrative, since errors occur: a wrong guilty verdict or erroneous upholding of a complaint may have a significant impact.
From the perspective of health care practitioners, the introduction of lay people into the heart of accountability systems introduces into the adjudication system external standards, views and priorities and may thereby introduce additional layers of uncertainty and, potentially, additional reputation costs. There is qualitative evidence and commentary suggesting mistrust of lay adjudicators, scepticism about lay people's ability to evaluate evidence, and concern about whether adversarial systems will be constructive since evidence is often contestable, it is not straightforward to attribute actions to outcomes, and the valuation of outcomes is subjective.7,8
Systems for managing health care accidents have to deliver non-financial reparation to victims if they are to meet their second objective and deliver ex post justice. Survey evidence shows that, when immediate financial needs have been met, financial compensation is less important to patients than non-financial dimensions of reparation. Victims are concerned about being heard, knowing that there is a reason for their experience and, sometimes, having someone take responsibility.9 This is recognized in, for example, the new NHS Redress Act in the UK which specifies that compensation can include financial compensation, apology or explanation.10 Apologies (which may be desired by up to 98% of medical malpractice plaintiffs) are also used in restorative criminal justice as a way of recognizing victims’ experience.11 They have important symbolic status, since they comprise an admission of fault and a symbolic transfer of power. However, while recognizing victims’ experience in this way may be integral to restoring patients’ trust in the health care system, at least some practitioners associate a system that delivers this with fear and shame.12 To the extent that this occurs, meeting the second objective by providing effective compensation (i.e. giving ex post justice to victims) unintendedly promotes the attitudes which underpin defensive behaviour.
Various institutional arrangements are employed to try and mitigate defensive behaviour, and its impact on costs and quality.3 One approach is to introduce some form of collective responsibility for adverse events in order to lift the burden of responsibility from individual practitioners. This might take the form of enterprise liability, although recent evidence suggests that this is still associated with defensive behaviour.13
Collective responsibility may also take the form of a no-fault system. No-fault compensation has been introduced for birth defects in some US states,9 and New Zealand's accident compensation scheme has been amended recently to compensate the victims of all medical accidents, regardless of fault.14 The New Zealand system delivers uniform compensation payments to all victims of health care accidents. It is explicitly designed to prevent defensive practice and promote a systems approach to accident prevention. Funding is not experience rated and, with minor exceptions, no action is taken in direct response to accidents and only aggregate information is disseminated to professional disciplinary bodies. This reflects the principle that quality cannot usually be attributed to the actions of individuals but is the result of complex social, organizational and human factors, and is best promoted in an environment where no fear is attached to disclosure. It is notable that the New Zealand system potentially delivers responsibility for quality control back to professional groups.
Based as they are on achieving justice through uniform financial reparation, no fault administrative systems may not give victims a sense of being heard. These systems therefore generally include complementary channels able to be used by victims wishing to pursue a broader sense of ex post justice. In the US, victims still have recourse to the courts and in New Zealand they can make a complaint to a Health and Disability Commissioner.15 Survey evidence suggests that a substantial number of health care professionals mistrust this process and dread complaints.7,16 Having available a system designed to provide justice to victims may, therefore, be incompatible with the operation of a systems approach to quality improvement which relies on open disclosure of errors and not being defensive. The disjunction sets up a problem in that effective ex post justice potentially undermines the efficiency of ex ante prevention, in both administrative and tort law-based systems.
Senior Research Fellow Health Services Research Centre Victoria University of Wellington PO Box 600, Wellington New Zealand
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