David M. Studdert, Allen B. Kachalia, M.D., J.D., Michelle M. Mello, J.D., Ph.D., M.Phil., and Troyen A. Brennan, M.D., J.D., M.P.H.
A. B. Kachalia, M. M. Mello, T. A. Brennan et al., "Beyond Negligence: Avoidability and Medical Injury Compensation," Social Science and Medicine, Jan. 2008 66(2):387–402.
Critics of the tort system in the United States are seeking alternatives to this form of compensation for medical injury. In this Commonwealth Fund–supported article, researchers discuss three nations’ experiences with "health courts," in which adjudicators rely on experts to determine compensation, based on a standard other than negligence.
The researchers investigated Sweden, Denmark, and New Zealand's long experience with health courts through interviews with administrators and stakeholders. Health courts in Sweden and Denmark rely on a standard of "avoidability"—defined as injury that would not occur in the hands of the best practitioner—to determine compensation. New Zealand moved recently to a no-fault standard, which, according to the authors, has both benefits and drawbacks.
In all three countries, health courts have resulted in timely decision-making and the judicious use of precedent to achieve efficiencies. Most important, the countries are able to use their claims databases to study medical injuries and to pursue patient safety improvements.
The authors conclude that—although experience from foreign countries is not sufficient evidence on which to ground major reform of the U.S. legal system—it should "boost confidence that small-scale pilots of health courts are worthy of experimentation and likely to produce good results."