PubMed · 11648292
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U.S. District Court, D. New Jersey. 1995-08-15. D.B. v. Bloom.. https://pubmed.ncbi.nlm.nih.gov/11648292/
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Patients are frequently harmed by problems arising from the health care process itself. Addressing these problems requires understanding the role of errors, violations, and system failures in their genesis. Problem-solving is inhibited by a tendency to blame those involved, often inappropriately. This has been aggravated by the need to attribute blame before compensation can be obtained through tort and the human failing of attributing blame simply because there has been a serious outcome. Blaming and punishing for errors that are made by well-intentioned people working in the health care system drives the problem of iatrogenic harm underground and alienates people who are best placed to prevent such problems from recurring. On the other hand, failure to assign blame when it is due is also undesirable and erodes trust in the medical profession. Understanding the distinction between blameworthy behavior and inevitable human errors and appreciating the systemic factors that underlie most failures in complex systems are essential for the response to a harmed patient to be informed, fair, and effective in improving safety. It is important to meet society's needs to blame and exact retribution when appropriate. However, this should not be a prerequisite for compensation, which should be appropriately structured, fair, timely, and, ideally, properly funded as an intrinsic part of health care and social security systems.
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The Dutch Bar Association is considering the introduction of the contingency fee system ('no cure no pay'). Opponents believe that such a system will lead to an increase of legal procedures in health care as well as in other areas. However, experiences from the United States point in another direction. It appears that other elements of the Unites States tort system have a far greater risk of causing legalization than the contingency fee, notably the litigious society structure, the large compensations and the system of punitive damage, the jury system, and the widespread lack of social security. Nevertheless, a no fault health insurance system is preferable to the contingency fee system.