The need for healthcare reforms: is no-fault liability the solution to medical malpractice?

Abstract

Healthcare reforms in India have been a much-debated issue in the recent past. While the debate has focused mainly on the right to healthcare, another by-product that has evolved out of the debate was the current problem of medical malpractice and the healthcare law. The last decade has seen an increase in the healthcare facilities in the country. This, however, has come with a bulk of medical error cases which the courts have entertained. According to reports, there has been an increase in medical litigation cases by 400% in the last decade. There are about 5.2 million cases of medical error in the country every year. While there exists a standard legal system in the country which entertains such complaints of medical malpractice, the attempt by regulators and medical practitioners should be to reduce these cases. This paper seeks to analyze the extent to which medical malpractice cases affect consumers (patients). It analyzes the existing medical liability system which has mainly evolved through the jurisprudence laid down by the English courts and critiques it. It also looks into the major reasons for such medical mishaps. Authors argue that a “No-Fault” system may give better outcomes. They analyze this by looking at the no-fault liability model implemented in New Zealand. Narratives of no-fault liability being implemented in India have also been used. These are showcased from instances of Motor Vehicles Act, 1988, and Clinical Trial regulations. It is also argued that a by-product of a no-fault liability system is stringent regulations which are used to reduce the possibility of medical mishaps altogether. Lastly, the possible problems of the no-fault liability system are discussed in the paper.