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5 Int'l J. L. Context 179 (2009)
Minimising Medical Litigation: A Review of Key Tort and Legal Reforms

handle is hein.journals/injwcext5 and id is 179 raw text is: 

International Journal of Law in Context, 5,2 PP- 179-233 (2009) Cambridge University Press
doi:io.ioI7/SI74455230999oo6i Printed in the United Kingdom

Minimising medical litigation: a review of key

tort and legal reforms

Harold Tan
Deputy  Director, Health Regulation Division, Ministry of Health, Singapore

    The traditional tort system in medical malpractice is increasingly perceived as being incapable of
    addressing the mismatch between claims and negligent injuries. Tort reforms have been introduced in
    various developed countries in an attempt to bring about greaterfairness and economic sustainability
    in the compensation of medical injuries and to reduce the overall rate of medical litigation. This paper
    reviews the key tort reforms that have been used in various countries, notably the US and the UK, and
    discusses the arguments that had been put forth by advocates and opponents of such reforms. The
    impact of these tort reforms, where studied and available, is also reviewed and discussed in the paper.


In most countries, professional liability in medical malpractice is based on the rule of negligence.' In
theory, the tort system is designed mainly to deter medical negligence as well as to compensate patients
who  are injured by negligent  doctors and other health-care professionals.2 Unfortunately, the tort
system is increasingly perceived as not achieving these objectives. Where compensation is concerned,
several studies have shown  a significant mismatch between  claims and negligent injuries, i.e. only a
small proportion  of negligent injuries results in claims (the 'iatrogenic pyramid')3 and only a small
proportion of claims involve true negligent injury.45 This suggests that many injured patients do not
sue for compensation  while  others readily attribute poor clinical outcomes to negligence. In either
case, the tort system does not resolve medical disputes satisfactorily. If an injured patient sues because
he wants  an explanation or apology rather than monetary  compensation,  then litigation may not be
the appropriate  solution, as opposed to alternative dispute resolution (ADR).6 Moreover,  medical

I   Danzon (1994)-
2   Fenn et al. (2004); Smith (2005); Brine (2003).
3   Aas (199), Localio et al. (19i) found that only eight out of 280 of patients injured through negligence had
    filed malpractice suits. The statewide ratio of adverse events caused by negligence to malpractice claims was
    7.6 to i; Weiler et al. (1993) found that the number of claims filed was less than one-tenth of the number of
    injuries caused by medical negligence, with the ratio higher for more serious injuries; see also Elgie et al.
4   Studdert et al. (2006) discovered that 72 percent of claims were not associated with errors and 73 percent of
    injuries did not result in compensation.
5   Brennan et al. (1996) found that a larger percentage of serious adverse events leads to claims as compared to
    less serious adverse events.
6   Several studies have found that people sue not just for monetary compensation but also doctors' failure to
    establish trust and empathy: see Hickson et al. (2005); Huycke and Huycke (1994); Krause et al. (2001); May
    and Stengel (1990). Inadequate doctors' explanations and accountability and doctors' poor understanding of
    patients' perspectives also contribute to litigation: see Dauer and Marcus (1997); Vincent et al. (1994);
    Beckman  et al. (1994)

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