No-Fault Medical Malpractice Compensation: Policy Considerations for Design of a Demonstration Project

For many years, there has been discussion in medico-legal academic circles of replacing tort-based compensation for medical errors with an administrative alternative in which an individual provider’s fault or blameworthiness is not at issue. Such a system would offer the prospect of a simpler, fairer, more efficient, and less contentious means of adjudicating claims, while facilitating candid and self-critical discussion of the causes of medical errors. Some proponents of this approach suggest that it would also result in more injury compensation paid to elderly claimants.

No-fault advocates are now beginning the difficult task of designing a demonstration project. Designers of an administrative system face a difficult task in reconciling the competing values and needs at stake. Striking a balance too far in the direction of relieving providers’ litigation burdens could result in patients losing not only the unique form of agency they wield in tort litigation but also some of their awards. In order to ensure that patients benefit from a no-fault project, basic consumer protections must be built into the system.

This AARP Public Policy Institute Issue Paper examines the quandaries posed by the collision of the no-fault approach’s ambitious goals with practical and cost constraints, uncertainty about medical science, and competing notions of fairness. It discusses how these dilemmas will manifest themselves in such key design decisions as the role that neutral experts will play; changing the “standard of care;” and system oversight. (32 pages)