Patient Safety and the Law : A Multi-Jurisdictional Comparative Assessment of Strategies to Reduce Medical Error and Improve Patient Safety
Citation:Michelle Katherine Marie Buddecke, 'Patient Safety and the Law : A Multi-Jurisdictional Comparative Assessment of Strategies to Reduce Medical Error and Improve Patient Safety', [thesis], Trinity College (Dublin, Ireland). School of Law, 2017
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In 1999, the Institute of Medicine released their landmark report To Err is Human: Building a Safer Health System. The report drew wide-spread attention to the unacceptable number of adverse events occurring within the American healthcare system, the fundamental role of systemic error and healthcare culture in the causation of these events, and the necessity for prevention over deterrence. The philosophy ‘To Err is Human’ has become the foundation on which the ‘The Patient Safety Movement’ is based. To date, patient safety methodology has concentrated primarily on cultural change and accountability; incident reporting and analysis; reformed education standards; improved communication, teamwork, and consensus building; patient and family engagement, and patient and family-centred care; the use of evidence-based practices; and system redesign. All of these strategies, born of out the patient safety movement, will be examined in significant depth throughout this thesis in the context of medical error reduction. In contrast, legal strategies to prevent and respond to medical error (operating in tandem with the above) have traditionally been adversarial in nature, based primarily on the principles of deterrence and retribution, and enforced by way of civil and criminal legislation and jurisprudence. While the analysis within this thesis is strongly premised on the argument that the threat of legal, financial, or disciplinary penalties on their own are ineffective at furthering patient safety, this should not be taken as negating the role for both civil litigation and criminal prosecution when an individual or organisation has been negligent, reckless, or acted intentionally - these legal avenues undoubtably remain necessary for fostering safety and promoting accountability. For the purposes of scoping, this thesis is predominantly concerned with the interaction between patient safety methodology and the civil law, and accordingly, will focus on legislative and organisational reform intended to reduce the secrecy and fear associated with medical error common within healthcare culture. Contemporary legislative and organisational initiatives within the patient safety agenda to improve safety and reform culture have been directed primarily towards enabling the flow of communication between healthcare professionals, organisations, regulators, and patients. In particular, the use of alternative dispute resolution to reduce the length and cost of potential medical malpractice claims, as well as limiting liability from the disclosure of an incident or offering of an apology. While attempts to reform healthcare culture and implement the aforementioned strategies has consequently given way to the larger discussion of the appropriate role and application of accountability in healthcare - a challenge that will be examined at great length throughout this thesis in reference to a ‘just culture’ - patient safety theory continues to be fundamental in moving the conversation away from deterrence and towards prevention. The question that guides this thesis is: ‘An assessment of strategies which, operating in tandem with medical malpractice actions, will improve patient safety (and based on comparative analysis of how these strategies have worked in different jurisdictions.)’ Using a literature review and analysis methodology, and concentrating primarily on the healthcare and legal systems of the United States, England, Canada, Ireland, and New Zealand – the theoretical framework of this thesis is based on two intrinsically connected themes: an assessment of strategies for reducing medical error based on patient safety methodology, and second, the role of medical malpractice law and litigation in the reduction and mitigation of medical error. In this respect, this thesis does not focus its attention on how patient safety methodology fits into the legal structure, but rather how the current and proposed legal mechanisms fit within and further patient safety. Additionally, this thesis advocates the view that above all other strategies for the reduction of medical error, those which improve healthcare communication are paramount. As a contribution to the growing body of patient safety literature, my analysis will assess the aforementioned multi-disciplinary strategies for improving patient safety, and will demonstrate that the adoption of strategies that address healthcare culture and communication by way of legislative and organisational reform are the most effective mechanism by which to reduce medical error because they are uniquely capable of bridging the dichotomy between the collaborative ideals of the patient safety movement and the inherently adversarial nature of the legal system.
Publisher:Trinity College (Dublin, Ireland). School of Law
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Type of material:thesis
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