The litigation threat to surgical practice: legal reform and risk management.

Abstract

There exists a considerable body of literature, across jurisdictions in the common law world, and including a wide variety of sources – from academic articles to presidential speeches – asserting the existence of a “medical litigation crisis”. Surgery, in particular, is on the “front line” of this crisis, making it also a “surgical litigation crisis”. The research aims to first understand the nature and the extent of the threat that litigation poses to surgical practice. A critique of tort law in relation to surgical practice will be undertaken. A synthesis of the literature on the reform of tort law and medical malpractice law will be given including: no-fault medical injury claim systems; limitation of remuneration for non-economic loss and the establishment of special health courts and Alternative Dispute Resolution methods. The research work and its publications will propose potential solutions to these litigation problems; investigate impediments to their realisation and examine practical strategies for the motivation of governments to engage in legislative reform, as well as examining the limitations of law for solving social problems. Changes to medical practice, such as strategies of eliminating medical error and risk management are also discussed.