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The threat of litigation as a possible barrier to innovation

The following editorial by Dr Jonathan Coates, a lawyer who specialises in medicolegal law, is the last in the series on the barriers to innovation in healthcare. Although the risk of litigation is cited as a stimulant for defensive medical practice and as an inhibitor of innovation in high-tort-risk countries such as the US, England and Australia, the underpinning data in this regard are not robust. Dr Coates’ consideration of the situation in New Zealand provides an interesting insight in this context, given that New Zealand has a no fault compensation system, which makes it very difficult for anyone to sue a doctor for a treatment injury. He quite appropriately identifies alternative drivers of defensive medical behaviour such as reputational risk and fear of complaint. As an aside, comparisons of treatment injury rates between New Zealand and tort-rich countries are difficult given that the monopoly corporation that exists in New Zealand enables a comprehensive and inclusive data set. It is nevertheless of some concern that within a decade, that treatment injury will be the single highest category of costs to New Zealand’s accident compensation scheme.