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.

Introduction

Medical malpractice is an adverse event related to an unintended injury caused by medical mismanagement (Boccara 2009). This “adverse event” can be either a medical mishap or a medical error. It is usually difficult to differentiate the two. A medical mishap is an adverse event which occurs even if the treatment is properly given, whereas, in medical error, the adverse event results from an act or an omission by a medical practitioner during treatment, and is a deviation from standardly accepted norms (Bal 2009). The deviation from the accepted norm is the origin of the medical malpractice litigation. This paper briefly addresses the increasing problem of medical malpractice in India and attempts to look for possible solution to an otherwise increasing number of medical litigation cases. The “Understanding the Standard of Care” section of the paper offers a legal perspective used in determining the standards of care. It delves into the jurisprudence established by the Courts in England and their application by the Indian Judiciary. The “The Indian Scenario” section of the paper introduces the Indian context where it discusses the increasing medical litigation and problems faced by the litigants, as well as the Indian judiciary. It discusses the reasons for medical errors citing lack of patient information (information asymmetry) being one of the major causes. The authors state that there is a dire need to increase regulation to tackle the problem of medical errors. The authors introduces the argument for “no-fault liability” as a response to the problem of increasing medical litigation. The advantages and disadvantages of the no-fault liability law of New Zealand is considered comparatively with the legal regime in India.

Understanding the Standard of Care

The most pressing problem in determining a case of medical malpractice is ascertaining the standard of care. The standard of care used by the Indian Courts has been adopted from English case law. The case of Bolam v. Friern Hospital Management Committee determined the test of “reasonable degree of care and skill” (Pandit and Pandit 2009). The court on page 5 of this case held that (Bolam v. Friern Hospital Management Committee 1957):

…the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill: It is well-established law that it is sufficient if he exercises the skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he confirms with one of these proper standards, then he is not negligent.

The standard of care is determined by the professional practice of the medical fraternity, which leads to a situation where doctors indirectly become their own judge. The first assumption that this paper takes is that it is ineffective to let the medical fraternity set the standard of care as they are driven by professional self-interest.

Furthermore, the threshold for precaution that has been established for medical practitioners is low, leading to more litigation (Bhatt 1996). “Reasonable care” is subject to change from time to time. It is therefore important to adopt a system that would increase the standard of care with changing times. More importantly, there exists a need to adopt a system that would internalize the cost of medical litigation. The aim of this paper is to look at medical liability from an ex-ante perspective, thus trying to avoid cases of medical malpractice all together.

In English law, the Bolam Test was qualified by the Bolitho Test (Bolitho v. City and Hackney Health Authority 1997) and has recently been replaced with the Montgomery Test (Montgomery v Lanarkshire Health Board 2015). Although Indian courts generally do not apply the Bolitho Test, the Supreme Court has mentioned it twice already (Bhatt 2009). The Bolitho Test called for a doctrinal shift and suggested that the Courts need to take an interventionist stance in assessing expert evidence and in setting the standard of care. It held the Bolam Test to be inapplicable in situations where the opinion given by the body of experts is illogical. The Court, in this case, held that the issue of reasonableness is for the court and not for the medical profession to determine (Mishra 2017).

The Indian scenario

India’s judiciary has relied extensively on the law laid down by Courts in England, although the interpretation of the standard of care has been customized to meet local needs. Supreme Court in Poonam Verma v. Ashwin Patel and Ors (1996). discussed the ambit of negligence, where the court stated that negligence has many manifestations such as “active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se.” The court went on to state that an omission to perform a duty or a deviation from the duty of care will result in one of these forms of negligence. The case of Jacob Mathew v. State of Punjab (2005) was another case where negligence was extensively discussed. This judgment was an attempt to balance rights for doctors to avoid harassment. The effect was rather a dilution of responsibility for doctors. The judgment in paragraph 18 stated that:

… a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

In effect, the Jacob Mathew case implied that even sub-optimal standard of care is acceptable, as not all doctors were expected to have the highest level of skills. As long as there was no prima facie deviation, there was no violation of standard of care.

A statistical overview of medical malpractice in India

The last decade has witnessed an increase in number of healthcare facilities in India (India Brand Equity Foundation 2018). Along with this, in the past few years, there has been an increase in the number of medical malpractice cases (Akhter 2016; Jha 2017). The problem of medical malpractice is underestimated and requires a strong policy change.

Some reports suggest that there are over 400,000 cases of death due to medical negligence in the country. Eighty percent of cases involves surgery, with obstetrics and gynecology leading at 29%, followed by orthopedic cases at 22%. Thirty-four of these cases involves negligence of hospitals or doctors (Kaushik 2015). Punjab has the highest rate of cases related to medical negligence, at 24%, followed by West Bengal, Maharashtra, and Tamil Nadu followed with 17%, 16%, and 11%, respectively (The Economic Times 2016). There have been more studies, one of which suggests that there is a 110% rise in the cases of medical negligence in India every year. A case study in Nagpur revealed that “90% of all cases in medical negligence involve hospitals, and 12% of all the cases decided by consumer court are on medical negligence” (Singh 2016). A medical malpractice case is usually an inefficient means of resolving disputes between medical practitioners and patients. This is because it involves administrative (litigation) costs. The slow judicial process takes years to arrive at conclusions, and a part of these costs is borne by the whole community (Dute et al. 2004, 32–35). Furthermore, the court while awarding compensation can never be certain about the compensation amount. There exists no set of guidelines to determine the exact damages. This has led to the complainant receiving insufficient level of compensation.

In the State of Karnataka, 329 cases of medical malpractice were registered against medical practitioners in the State Medical Council between 2012 and 2017. Most of the cases are against both hospitals and doctors being negligent while performing their duty. However, only 33 of these cases have been proven till now (Rao and Sunitha 2017). This clearly depicts how availing compensation for medical malpractice is extremely difficult. The case of Kunal Saha (Dr. Balram Prasad and Ors. v Dr. Kunal Saha and Anr 2014) serves as a good example on this point. The Supreme Court awarded damages of up to INR 6 crores plus interest, making it the highest medical negligence compensation ever in the history of medical litigation in India. This case took 15 years to conclude. It is important to note that the complainant initially lost the case as the West Bengal Medical Council and Calcutta High Court both dismissed his case against AMRI Hospitals (Krishnan 2013). It was only when the complaint was filed in National Consumer Disputes Redressal Commission (NCDRC) that medical negligence was acknowledged. However, the compensation that was awarded was still not the final compensation eventually awarded by the Supreme Court. This clearly shows the difficulty in determining a “fair and just” compensation for the injured party.

Reasons for medical mishaps/errors

There are at least two reasons for the occurrence of medical mishaps/errors: lack of information and doctors not spending enough time to treat patients even after information is made available. Lack of information exists when doctors do not have sufficient patient information to properly diagnose the medical problem faced by the patient (Aggrawal and Sardana 2014). One of the major reasons for lack of information is linked to deficiencies in healthcare technology and systems that provide healthcare providers with the information they need, both to select and provide the right treatment and to detect and redress adverse events. The availability of this information is causal in reducing medical mishaps/errors (Arlen 2013). In India, there is a lack of diagnostic machines in the public healthcare sector as well as in small private healthcare centers (PwC 2012). This lack of or poor quality diagnostic machines results in doctors giving a sub-optimal diagnosis. In this respect, the government, as well as private hospitals, are directly responsible for medical mishaps.

The second reason involves doctors not giving sufficient time in diagnosis and treatment even after sufficient information is made available. This is because doctors in private hospitals want to attend to as many patients as possible in the least possible duration. Medical practitioners in private hospitals are often given financial targets (The Economic Times 2015), as a result of which doctors prefer to attend to the maximum number of patients in a minimum duration. Thus, they are incentivized to allocate less time to each patient. Furthermore, the doctors in government hospitals are overburdened with too many patients, while the government hospitals are understaffed (Sharma 2017), resulting in logistical issues for timely check-up of all the patients.

Limitations of a fault-based approach

The discussion by the authors in the above sections was to give a holistic picture of the problem of medical malpractice in a fault-based system of torts. In a fault-based system, India has seen significant increase in the medical negligence cases, coupled with a slow judicial process. A case in hand is that of Kunal Saha which was discussed above. This clearly shows that the fault-based system may (sometimes) provide for just compensation, however, the long drawn litigation process may hinder fair and effective outcomes, particularly in the context of India. The paper seeks to offer one concrete proposal, i.e., moving towards a Strict Liability or a No-Fault Liability system. A case of no-fault liability in government hospitals would result in making the hospital liable for any medical mishap. In the case of private hospitals, the liability should be borne by both: the medical practitioner and the hospital. Private hospitals should be held liable as they purchase equipment and set the internal practice standards. Making hospitals liable would force them to internalize the cost, thereby increasing the level of precaution through enforcing higher practice standards.

Another factor that should be considered in a case like this is that doctors in private hospitals are covered by “indemnity insurance.” They are compensated for any liability that may occur against them. Therefore, the activity level of the doctors would not decrease if there were a shift towards strict liability. However, the premium paid on these insurances would significantly increase if there were recurrent cases of medical malpractices; the cost for which would be borne by the insurance companies. An increase in the insurance premium or a possible threat that the insurance companies may not insure or cancel the insurance would result in doctors taking higher precautions.

The concept of no-fault liability would operate on the idea that the victims are not often compensated properly. Therefore, by having a no-fault liability system, the victim need not have to prove negligence or fault to get compensation. The patient only has to prove that damage occurred during the process. This idea has been widely used in cases of automobile accidents in various other countries. This system results in getting a definite compensation for the victim without incurring litigation costs (Boccara 2009). Moreover, the doctors would take high number of precautions in order to reduce the risk of a medical mishap/error. No-fault system has been successfully implemented in Virginia and Florida for children who suffer neurological trauma during birth. It is slightly different from strict liability as the bearer has to be responsible for the cost of precautions only and not damages (Boccara 2009).

The tort system faced multiple challenges. It was found that, most of the time, the patients who were injured would not qualify for compensation (Mathieson 1968). Keeping in mind that it is extremely difficult to prove fault in case of injury, the claims were either not received by the potential recipients or were substantially low. The administrative cost of the previous tort system was high (which included the cost of litigation and dispute resolution), which resulted in useless expenditure of time and money. The no-fault liability system is administratively more efficient (Anderson 1969).

The main problem that arose was that of recipients not qualifying for compensation. The recipients at the time of implementing the policy were workmen who were already subjected to too many demarcation, mainly demarcation made in the definition of “worker.” The primary purpose was therefore to increase the number of beneficiaries of the scheme by including everyone. The compensation was also based on “severity of injury” without delving into the aspect of “future loss of work.” The incapacity to earn in the future was therefore neglected.

Moreover, studies show that a specific category of patients (poor and elderly patients) do not sue for compensation (Burstin et al. 1993). A study conducted in the USA found that socioeconomic reasons are one of the major factors for not suing for medical injury. The study concluded by stating that the elderly and the poor do not sue most of the time, even when there is a medical error (Burstin et al. 1993). It is because of socioeconomic conditions that cases of medical injuries tend to go unclaimed. It leaves the injured at a sub-optimal level and deters imposing of sufficient regulations by the respective authorities.

No-fault liability system as a possible solution

No-fault liability has successfully replaced tort law in several countries. A successful example is that of New Zealand, where the patients are compensated a fixed amount in case of medical injuries, while they relinquish their right to sue for damages for personal injuries (Bismark and Paterson 2006). The inception of no-fault was in 1974. Initially, the system was only extended to workers’ compensation and automobile accidents. Subsequent legislation introduced it into other areas including medical injuries. This was when the government adopted a compensation scheme for personal injuries, replacing it with the former tort-based system (Schuck 2008).

The policy change was based on the reasons mentioned in the Woodhouse Report (as popularly known) (Mathieson 1968), which criticized the tort-based system for its false morality, the high administrative costs, and time it consumed. According to the prevailing system, the compensation is determined based on outcome and will be awarded irrespective of any medical negligence. The doctors, on the other hand, would be judged based on the process of care and may be held accountable accordingly (Wallis 2013).

After some changes, the no-fault system in New Zealand was narrowed down to medical error and medical mishap and was therefore not a “blanket no-fault” system. The claims allowed a speedy remedy for the injured, along with a reduction in administrative costs (Danzon 1994) (even though there is not much data exclusively on the administrative costs of medical injuries). The Accident Compensation Corporation (ACC) provides substantial amount of no-fault benefits, which include meeting hospital and medical costs beginning a week after injury. It covers 80% of the average weekly earnings. In addition to that, it provides compensation for transportation and rehabilitation. It also gives lump sum payments in cases of permanent loss or impairment as well as entitlements for surviving spouses and children. Most of these services do not require many approvals beforehand. Moreover, the service providers do the paperwork for the injured and submit to ACC (Danzon 1994).

Apart from that, medical practitioners may be liable to pay damages, if the harm is much more than the no-fault compensation awarded by the ACC (Schuck 2008). In certain cases, the medical practitioner may be required to pay damages where there is no personal injury. Mental injury cannot be compensated by the ACC as it is beyond the scope of the Act, but the injured party can sue the medical practitioner (Dute et al. 2004). The medical practitioner may also be liable to pay exemplary damages. The law covers personal injury and will award punitive damages to the patient, which is, to be paid by the medical practitioner. In the case of McLaren Transport Ltd. v. Somerville (1996), the court held that “exemplary damages may be awarded, only if the level of negligence is so high that it amounts to outrageous and flagrant disregard of plaintiff’s safety, meriting, condemnation, and punishment.”

Argument of moral and ethical obligation towards the society

The proponents of no-fault liability have also argued that the society owes a moral and ethical obligation towards the injured (Manning 2017). Even though this argument has been made for no-fault liability in clinical trials, the same argument is extended to the scheme of medical errors and mishaps. Some of the factors making it a moral obligation include principles of non-maleficence and beneficence, economic justifications, utilitarian justifications, and to avert loss in public trust (Manning 2017). The same factors play an important role in weighing the moral and ethical obligations for medical injuries. Principles of non-maleficence and beneficence form the essence of bioethics. The patients who are injured in violation of these principles are therefore entitled to compensation.

Similarly, to avert loss of public trust in the healthcare system, there is a need to provide fair compensation to the injured and put enough deterrence on medical practitioners who have failed to carry out their activities or without adhering to the due standard of care. The economic loss incurred by the patient (mental or physical) also needs to be compensated for, in order to restore him or her to the pre-injury state. Moreover, a no-fault system in any context is mainly based on utilitarian justifications. Therefore, there existed a strong moral and ethical ground to have a no-fault liability system in place.

The establishment of a Health and Disability Commissioner ensured that action is taken in cases of medical error, where there has been a deviation from the required standard of care (Bismark and Paterson 2006). The patient grievances are resolved by dispute resolution mechanisms like mediation and by inquiries and investigation of the commission. The availability of a disciplinary mechanism would make sure that even if the doctors are not liable for damages, action is taken against them, which would force them to adhere to appropriate standard of care.

No-fault liability in India: motor vehicle accident and clinical trials

India has adopted a no-fault liability system with respect to Motor Vehicle Act (Section 1401988) and Clinical Trial Regulations, Central Drugs Standard Control Organisation, Directorate General of Health Services, India 2012 (Gupta et al. 2014). This has resulted in a successful implementation in availing speedy compensation to the injured. The Act does not relinquish the right of the injured to proceed for further compensation. At the same time, it awards a certain sum to the individual by merely proving that harm was caused.

The no-fault liability with respect to motor vehicle accidents sought judicial support prior to the promulgation of the Act. The Supreme Court in Manjusri Raha v. B.L.Gupta (1977) made some extremely relevant observations. In paragraph 1 of the judgment, it stated that:

The time is ripe for serious consideration of creating no-fault liability. Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalization of general insurance companies and the expanding trend towards nationalization of bus transport, the law of torts based on no-fault liability needs reform.

Keeping these ideas in mind, a no-fault liability approach was adopted in the 1988 Act (Section 163A, Motor Vehicle Act 1988). Section 163A mandates the injurer or an insurer to pay compensation to the injured, irrespective of proving any fault (United India Insurance Co. v. Sunil Kumar 2014). Legal recourse is available to the injured under section 140 and section 163A, and the injured is not required to prove any fault. It is argued that the compensation in such cases is often little, however, such compensation can be considered interim, subject to increase once the lawsuit for injury is filed against the injurer.

Moreover, the mandatory insurance requirement has been adopted from the UK legislations (Sebastian 2017). The idea of compulsory insurance is to make sure that a just compensation is made to the injured. In a situation where the injurer is unable to pay the claimant, he can recover the same from the insurance company (Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. 1987). Also, it prevents the insurer from escaping any liability on grounds of breach on part of the insured of any term of the contract (Law Commission of India 1980). It can therefore be concluded that the purpose of these legislations was to get the injured back to her or his pre-injury state. The compensation scheme devised may not be adequate, but is a partial relief to the long judicial process of injurer availing compensation.

The regulations governing no-fault liability in clinical trials are mentioned in Good Clinical Practices (GCP) Guidelines, mentioned by the Central Drugs Standard Control Organization, Directorate General of Health Services, India (Ministry of Health and Family Welfare, Government of India 2012). The regulation in paragraph 2.4.7 states that:

Research subjects who suffer physical injury as a result of their participation in the Clinical Trial are entitled to financial or other assistance to compensate them equitably for any temporary or permanent impairment or disability subject to confirmation from IEC in case of death, their dependents are entitled to material compensation.

This regulation entitles those who have been injured during clinical trials to avail compensation without proving any fault.

It is to be noted that this regulation has been widely criticized, but not with respect to its provisions, but rather, its poor implementation (Mondal and Abrol 2015). It is viewed as a legislation which is pro-patient, which may hamper the interest of foreign companies investing in clinical trials in India (Singh 2013). The GCP guidelines allow compensation to anyone, even if the clinical trial is merely contributory to the injury. The causality is determined by an investigator, after which compensation is determined by a committee of selected members (Mukherjee 2012). A successful implementation of this law would allow victims to get a remedy faster and an adequate compensation will help them get back to their pre-injury state.

Need for stringent regulations to tackle medical mishaps/errors

A no-fault system needs to be supported by stringent regulations on standard of care for hospitals, both in the private and public sector. While tackling this issue of medical mishaps due to lack of information, regulations are needed to internalize the cost of avoiding liability from medical malpractice litigation. Regulations would be preferred over establishment of tort liability through civil action as this would help avoid or reduce the threat of a lawsuit, reduce insolvency risks, and avoid the limitations of professional self-regulations. In India, there exist insufficient regulations on minimum standards for healthcare technology and system. Many public healthcare institutions as well as small private health centers either have outdated diagnostic machines or lack infrastructure altogether. Furthermore, there is a lack of standard clinical guidelines.

It may be possible to build on the existing legislative framework. According to the Clinical Establishments (Registration and Regulations) Act 2010 for clinical establishments, the requirements under the category “Medical Equipment and Instruments” states that the hospital shall have “adequate medical equipment and instruments, commensurate to the scope of service and number of beds.” This provision is currently too ambiguous and often allows the hospitals and medical practitioners to circumvent legal requirements. There is a need for regulations that mandate “a number” of medical equipment in every hospital. This number should be dependent upon the “bed-wise” accommodating capacity for a medical institution. Furthermore, these machines should be upgraded within a specific period or with technological advancement, whichever comes first.

It may be contended that one of the drawbacks of such a system is that purchasing medical equipment frequently may be expensive for medical institutions. However, the increased cost of regulations (precaution) can be factored into the final price of the service (Dute et al. 2004). The final price would be borne by the patient who would otherwise be compensated (partially/wholly) by the insurance company, should injury occur. This scenario would apply in a private hospital setting. In the case of government hospitals, as the cost of medical equipment is being borne by the state, the question of patients having to pay for higher regulations would not arise.

Institutions like Medical Council of India will need to conduct regular audits of medical practice and to ensure continuing medical education. This provision already exists in other countries like the USA. The benefit of holding a regular examination after a certain period (5–7 years) would make sure that the doctors are updated with new medical innovations and medical issues at the same time. It would thus reduce the chances of medical mishaps if doctors have updated knowledge.

Possible problems with no-fault liability in the Indian scenario

There are four main issues that need to be answered while analyzing the proposed model. First, the cost of regulation would increase with the introduction of no-fault liability. This has already been addressed in previous sections, where it has been explained that an increase in regulatory cost would not affect the hospital, as the cost is internalized by charging the amount from final consumers. An imposition of no-fault liability would compel private hospitals to increase precautions, thus lowering risks of medical mishaps/errors.

A second contention often made against this model is that No-Fault Liability results in the practice of defensive medicine. Defensive medicine in simple words is (Sekhar and Vyas 2013) in paragraph 1.

… departing from normal medical practice as a safeguard from litigation. It occurs when a medical practitioner performs treatment or a procedure to avoid exposure to malpractice litigation. Defensive medicine is damaging for its potential to poses health risks to the patient. Furthermore, it increases the healthcare costs.

This problem can however be tackled with the argument that, in some areas of medical practice and for some patients, there is decreasing information asymmetry in the modern world and the availability of information all around. There has been a significant change in the nature of doctor-patient relationship because of a reduction in information asymmetry.

Third, there may be situations where the doctor may not admit patients at all. This concern may not be applicable in India, especially in cases of “healthcare emergency.” The Supreme Court of India, in the case of Pt. Parmanand Katara v. Union of India (1989), stated that the obligations of medical practitioners to provide treatment override the professional freedom to refuse patients. The court went on to state that the right to medical treatment in a medical emergency is a fundamental right and is available under Article 21 of the Constitution (on Right to life). The court in the case of Paschim Banga Khet Majdoor Samity v. State of West Bengal (1996) further went on to state that failure on part of the government hospital to treat a patient who needs medical attention leads to an infringement of the right to life. Therefore, the law gives a remedy for the patient in cases of emergency.

The fourth problem was raised while dealing with the no-fault law in the clinical trials, with respect to compensation determination by a designated committee. It is contended that this committee may be incompetent to determine a fixed compensation rate and a “sole investigator” may not be capable of determining the severity of the injury. It is to be noted that these are procedural problems and should be separately addressed. The size and composition of the committee can be changed as per the requirement and it can be given powers equivalent to a tribunal. Further, an investigating committee can be formed, which specializes in such cases of no-fault compensation and has adequate knowledge of clinical trials.

Conclusion

It is argued that the current system of fault-based liability is inefficient. By using the term “inefficient,” we are not stating that it has been of no use or purpose, but rather, that there exists a possibility of a shift to a higher level of efficiency, for both patients and doctors. The current scenario depicts medical malpractice as a nationwide issue that has not been addressed by the law and policymakers.

Implementation of stringent regulations is needed to reduce the risks of medical mishaps and errors. This would reduce the overall social costs of inefficient civil litigation, as well as the administrative burden on the judiciary. A move towards a no-fault liability system would compel these institutions to set regulations at a level that is more appropriate and effective for both doctors and patients. Another suggestion which has been made time and again is to create an alternative platform for addressing medical error cases (Thakur 2017).

While there may not be much empirical data to substantiate the success of a no-fault liability system in medical malpractice case, it offers a solution to the problem of “information asymmetry” which is one of the main reasons for medical mishaps. A shift towards such a policy could lead to safer medical care, reduction of social cost, and an increase in efficiency in society.