No Fault Compensation Schemes: A rapid realist review

To inform the introduction of a no fault compensation scheme for birth injury in England, we developed a framework describing the mechanisms that might influence engagement in such a scheme. We conducted the first part of a... [ view full abstract ]

To inform the introduction of a no fault compensation scheme for birth injury in England, we developed a framework describing the mechanisms that might influence engagement in such a scheme. We conducted the first part of a realist synthesis which identified empirically and theoretically-based context, mechanism and outcome (CMO) configurations.
We focused on papers examining outcomes affecting claimants regarding their access to justice and their health, and those associated with clinicians, in terms of clinical practice and patient safety. We searched iteratively across medical and legal journals to fully understand the mechanism of ‘no fault’ as it operates across jurisdictions in developed countries.
Liability was the key variable in the schemes and the concept of blame shaped the schemes profoundly. In France, their compensation scheme was an expression of solidarity with individuals who had suffered major injury, but retained the notion of blame and the litigation process for those patients who could establish liability. In New Zealand, the country to most clearly dispense with blame, their scheme operated like a targeted social security benefit programme with its broad eligibility criterion of ‘treatment injury’. In the United States, tort reform seemed to be the reluctant consequence of a breakdown in the compensation system when doctors could no longer afford the insurance premiums and were leaving the profession.
Evidently, the schemes were a product of their jurisdictions. In New Zealand and Scandinavia, with their universal health care provision, the creation of a state-run compensation scheme fitted with their conception of health care as an important provision by central government. In the United States, there was unwillingness to deny claimants the possibility of attaining damages through the court process since there was less of a welfare safety net to support individuals with on-going ill health and disability.
Empirical research alongside theoretical contributions enabled the development of propositions which explained the effects of no fault schemes when compared to the tort system. These studies explained: the more precise targeting of compensation; the impacts on physical and mental health outcomes, and health system costs; the more equitable access to justice and health care; the differing strategies to deliver procedural justice; the possibilities of improved patient safety; and the limitations to data on medical error. The lack of studies about the impacts of no fault schemes on the physical and mental health of claimants suffering from medical treatment injury meant that our CMOs were less supported since the evidence came from studies of accident victims. We suppose that the mental health detriment of claimants with injuries arising from medical treatment may be greater since this situation may represent a breakdown in trust not present in victims of car accidents.
We discuss the evidence that allowed us to develop our propositions. We reflect on our experiences of conducting a realist review, given our intellectual background in systematic reviewing. We consider the issues of delivering a realist review when experience and expectations assumed a more formal systematic review product and discuss how we met those challenges.