Patients’ and family members’ experiences of non-litigation approaches to resolving medical injuries in New Zealand and the United States

Jennifer Moore1, Michelle Mello2, Marie Bismark3

1 Stanford Law School, 559 Nathan Abbott Way, Stanford, CA 94305 and the University of Otago, New Zealand,
2 Stanford Law School and Department of Health Research and Policy, School of Medicine, 559 Nathan Abbott Way, Stanford, CA 94305. 

3 Melbourne School of Population and Global Health, The University of Melbourne, 207-221 Bouverie Street, Parkville, Melbourne, Australia.

Context: The shortcomings of medical malpractice have led organisations to develop alternatives to meet patients’ needs following medical injuries. For example, in the United States (US), communication-and-resolution-programs (CRPs) seek to make disclosure of injuries, explanation, apology and other remedial gestures, routine. New Zealand (NZ) has long operated a no-fault compensation scheme for medical injuries. Despite the investment in these alternatives to medical malpractice, patients’ experiences with these processes are not well understood. This knowledge gap complicates health systems’ efforts to develop patient-centred responses to medical injuries.


1) To further explore patients’ and family members’ experiences with medical injuries and reconciliation processes in order to understand aspects of institutional responses to injury that promoted and impeded reconciliation.

2) To make recommendations about how institutions can better meet injured patients’ needs.

Methods: We conducted in-depth, semi-structured interviews in NZ and the US. In NZ, we undertook interviews with 62 patients injured by healthcare in NZ, as well as administrators of 12 public hospitals, 5 lawyers specializing in Accident Compensation Corporation (ACC) claims, and 3 ACC staff. In the US, we conducted interviews with 30 patients and 10 staff involved with CRPs. Transcribed interview data were analysed thematically applying grounded theory principles.

Findings: Interview responses converged on five facilitators of more effective reconciliation following medical injuries: 1) involve the people who patients want involved in the disclosure discussion, including practitioners involved in the harm event; 2) engage the support of lawyers,  mediators, and patient relations staff as appropriate; 3) ask, rather than assume, what patients and families need from the process and recognize that, for many patients, being heard is important and should occur early in the disclosure process; 4) support timely, sincere, and meaningful apologies, avoiding forced or tokenistic quasi-apologies; and 5) choose words that promote reconciliation.


Dr Jennifer Moore is the 2015-16 New Zealand Harkness Fellow in Healthcare Policy. She is also a Senior Lecturer in Preventive and Social Medicine, and a Senior Research Fellow in Law at the University of Otago. Moore has previously served as a legal advisor to the NZ Law Commissioners and currently serves on the NZ Law Society Health Law Committee. She holds a practicing certificate as a barrister and solicitor, and five university degrees, including a PhD in public health from the University of Melbourne. Her first book, Coroners’ Recommendations and the Promise of Saved Lives, was published in June.

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