Patient safety and legal challenges: Disclosure of medical error, class actions, and reporting systems

This paper explores some of the recent legal developments in Canada and the United States with respect to patient safety. It starts off with a critique of the current "patient safety approach" or "systems approach" to medical error which is the theoretical basis for many reform efforts. A critique of the tort system follows. Within the adversarial tort system, the disclosure of errors to patients remains difficult and requires substantial legal changes. A promising development is the increased use of class actions in Canada to address systemic errors. The patient safety movement has also led to the development of a variety of reporting systems. As a means of safety-research and quality-management, it is their goal is to detect unsafe conditions, preferably before harmful medical errors occur. In the United States, legal protections are increasingly used to create trust in confidential reporting and to uncouple reporting systems from other procedures.