Errors, Medicine and the Law

This study started with a chapter of accidents. How those accidents are viewed – and how we regard untoward occurrences in human affairs – has been the subject of our enquiry. It is our view that many of our current responses to such events are not only morally and scientifically unsophisticated, but may also be unhelpful in promoting better and safer practices. If we want to reduce the damage caused by accidents, then we should ensure that the legal response is fashioned with an awareness of the insights which psychology and accident theory can now afford. At present the law in many cases adopts a blunt approach which fails to take these insights into account. This is in the interests of neither the patient nor the doctor.

We have not been concerned with intentionally produced harm, which may quite uncontroversially merit blame. It is worth noting, though, that even in situations where blame is entirely appropriate, a strongly punitive response may not necessarily be the most effective method of dealing with the problem. There will, of course, be situations where a good case can be advanced for a strongly deterrent approach. An example of this is where punitive measures are used to deter the deliberate flouting of safety or environmental regulations by corporate actors. In these cases liability may be imposed on the corporation itself, which may be heavily fined, or there may be prosecution of individual managers or directors.