Medical Malpractice and Compensation in Global Perspective: Introduction

I. Issues Addressed

A. Overall Scheme

B. Details of the Applicable Liability and Compensation Systems

C. Empirical Data

D. Attitudes, Concerns, and Prospects

II. Aims

Medical Malpractice in Austria

Introduction

I. The Insurance Framework

A. Social Insurance in Austria

B. The Role of Private Insurance

1. First-Party Insurance

2. Liability Insurance

II. The Regulatory Framework

A. Professional Law

B. Criminal Law

C. Contract Law

D. Tortious and Contractual Liability

1. Tortious and Contractual Liability Not Mutually Exclusive

2. Tort Law in General

3. Damage

4. Causation

5. Wrongfulness and Fault

6. Multiple Persons Involved

7. Informed Consent

8. Remedies

III. Compensation claims in practice

A. General Remarks

B. Patient Advocacies

C. Conciliation Bodies

D. Compensation Funds

E. Outlook

A Bridge over troubled Waters: The Development of Medical Malpractice Litigation in Brazil

Introduction

I. The Brazilian Legal System

II. The Structure of the Brazilian Legal System

III. The influence of the Consumer’s Defense Code

A. Informed Consent, the Duty to Inform, and Informed Choice

B. Moral Damages and the Inversion of the Burden of Proof As Patient’s Basic Rights

IV. The Changes Brought by the New Civil Code

Conclusion

Canadian Medical Malpractice Law in 2011: Missing the Mark on Patient Safety

Introduction

I. The Canadian Malpractice Context

rvice Delivery, Regulation and Liability Insurance

II. State and Quality of the Canadian Health Care System

A. Medical Malpractice in the Domain of Privately Financed Care

III. Redressing Adverse Events through the Courts

A. Canadian Medical Malpractice Liability in Context

B. Empirical Trends on Medical Liability Claims

C. Black Letter of Canadian Tort Law

1. Battery by Physicians

2. Negligence by Physicians

3. Hospital Liability

4. Government Liability

5. Damages

6. Ongoing Issues and Avenues of Reform

IV. Preventing Adverse Events: Professional and System Reform

A. Reforms at the Level of the Professions

1. Alternative Complaint Mechanisms

2. Revalidation/Recertification

3. Apology Legislation

B. Systemic Reforms

1. Accreditation of Facilities

2. Canadian Patient Safety Institute

3. Improved Information Gathering and Dissemination

Conclusion

Yangge Dance: the Rhythm of Liability for Medical Malpractice in the People’s Republic of China

Introduction

I. The Wider Healthcare Context

II. The Early P.R. China: Medical Services as Social Welfare (1949–1987)

III. The Administrative Liability Regime

A. The Medical Accident Rules 1987

1. Context

2. Main Features of the Administrative Liability Regime, 1987–2002

B. The Medical Accident Regulations 2002

1. Context

2. Main Features of the Administrative Liability Regime, 2002 onwards

IV. The Tort Liability Regime

A. Recourse to the General Principles of Civil Liability

B. Elements of the Tort Liability Regime

1. Cause of Action

2. Burden of Proof

3. The Identification Process

4. Assessment of Damages

C. Effect on the Administrative Liability Regime

V. Reform of Medical Liability under the Tort Liability Law of 2009

A. Antecedents

1. Increasing Disputes between Doctors and Patients

2. Concerns about Defensive Medical Treatments

3. The Chaos Resulting from the Dual Dystem of Medical Liability

B. Legislative History

C. Four Dimensions of the TLL

1. Basis of the Cause of Action

2. Burden of Proof

3. The Identification Procedure

4. Assessment of Damages

VI. Another Step Backwards on Its Way?

Conclusion

Medical Malpractice and Compensation in France

Part I: The French Rules of Medical Liability since the Patients’ Rights Law of March 4, 2002

Introduction

I. General Conditions of Medical Liability

A. Facts Likely to Justify the Physician’s Responsibility

1. Liability Based on Fault

2. Strict Liability

B. The Causal Link

1. Causation Criterion

2. Causation Proof

C. The Victim’s Harm

II. Administration and Adjudication of claims based on liability rules

A. Adjudication Through Conciliation Commissions

B. Adjudication Through Courts

Part II: Compensation Based on National Solidarity

Introduction

I. Typology of Cases Covered by National Solidarity

A. Medical Hazards

B. Hospital-Acquired Infections

C. Blood Transfusions Infections

1. HIV Infection

2. Hepatitis C Infection

3. Additional Grounds

II. Administration and Adjudication of Claims Based on National Solidarity

A. Administrated Claims

B. Procedural Routes to ONIAM

C. Adjudication Proceedings in Front of ONIAM

D. Regulatory Principles Applying to Rights of Recourse

III. Awarded Compensation

Medical Malpractice and Compensation in Germany

Introduction

I. The Potential Legal Consequences of Medical Injury

A. Criminal Law

B. Professional and Disciplinary Sanctions

C. Fault-Based Compensation in Private Law

D. Strict Liability and No-Fault Compensation for Medical Product Injury

E. Social Security, Insurance, and Subrogation Issues

II. The System of Private Law Compensation

A. Treatment Malpractice Claims

1. Faulty Treatment

2. Causation

3. Proof Issues

B. Disclosure Malpractice Claims

1. Background

2. Standard of Disclosure

3. Causation

C. Damages and Liability Insurance Issues

D. The Medical Arbitration Boards

III. Assessment of the Current Situation

A. Empirical Data

B. Evaluation of the Private Law Redress Rules

C. Patient Safety Initiatives

Conclusion

Addendum

Medical Malpractice: The Italian Experience

Introduction

I. The Problematic Nature of Medical Liability

II. The Assignment of the Burden of Proof Between Parties

A. Proving Fault

B. Proving Causation-In-Fact

C. Proving Causation Under the Criminal Law and Under the Civil Law

D. The Role of Informed Consent

Conclusion

The Law of Medical Misadventure in Japan

Introduction

I. Prosecutions and Their Consequences

A. Prosecutions in Medical Cases

B. Response by the Health Ministry and the Medical Profession

C. One Prosecution Too Many: The Medical Professionals’ Counterattack and the String of Acquittals

II. Civil Liability

A. Substantive Law of Medical Malpractice

1. Theories of Recovery

2. Standard of Care

3. Level of Proof

4. Informed Consent and Related Actions

5. Damages

B. Key Aspects of Procedural Law and Practice

1. In General

2. Discovery of Peer Review Findings

3. Judicial Administration Reforms

4. Settlement Practices, Overall Claiming Levels, and Malpractice Insurance Premiums

5. Plaintiffs’ Attorney Fees and Court Filing Fees

III. The No-Fault Compensation System for Obstetrical Injury

Conclusion

Addendum

Treatment Injury in New Zealand

Introduction

I. The New Zealand Accident Compensation Scheme

A. The Woodhouse Report

B. Implementation

C. Developments to 2010

D. Relationship with the Common Law

E. Cover

1. Categories of Cover

2. Personal Injury

3. Residual Actions for Damages

F. Claimants

G. Benefits

H. Claims Process

I. Funding

J. Administration

II. Medical Injuries

A. Cover

B. Treatment Injury

1. Proof of Cause

a. Atkinson and Ambros

b. Modification of Ordinary Rules?

2. Nature of Treatment Injury

3. Treatment Injury in Operation

4. Costs

C. Professional Accountability

1. Reporting of Medical Risks

2. Complaints

3. Actions for Damages

a. Clinical Trials

b. Stillbirths

c. Pregnancy and Unwanted Births

d. Informed Consent Cases

e. Mental Injury

f. Miscellaneous

g. Exemplary Damages

Conclusion

A. Adequate Compensation?

B. Defensible Boundaries?

C. Administratively Efficient?

D. Disincentive to Safety-Conscious Behavior?

E. Overview

Medical Malpractice and Compensation in Poland

Introduction

I. Grounds for Civil Liability

II. Liability Based on Fault

III. Burden of Proof and Causation

IV. Compensation

V. Professional Liability of Doctors

Conclusion

Addendum

Malpractice in Scandinavia

Introduction

I. The Overall Scheme for Preventing and Redressing Medical Errors and Adverse Events

A. Regulatory Methods in the Nordic Health Care Systems

B. Compensation Systems

C. Liability Systems

D. The Relationship Between the Systems

II. The Details of the Applicable Liability and Compensation Systems

A. Patient Injury Compensation Systems

1. Introduction

2. Basis for Compensation

a. The Experienced Specialist Standard

b. The Failure of Apparatus

c. The Alternative Treatment Rule

d. The Reasonableness Rule

e. “Accidents”

f. Wrong Diagnosis

g. Infection

3. Causation

a. The Concept of Causation in Scandinavian Law

b. The Problems of Causation in Malpractice Law

c. Relaxation of Evidence

d. Assessment of Damages

III. Available Empirical Data

Conclusion

Medical Malpractice and Compensation in South Africa

I. The Overall Scheme for Preventing and Redressing Medical Errors and Adverse Events, Including Regulation, Criminal and Civil Liability, and Social and Private Insurance, and the Relationships Among These Various Systems

A. Regulatory Methods

1. Government Licensing Authorities for Doctors and Hospitals

2. Medico-Ethical Codes of Conduct

3. Reporting of Medical Errors and Adverse Events to the Health Profession Council of South Africa

B. Liability Systems

1. Contract

2. Delict (Tort)

3. Criminal Law

4. Relationship Between the Liability Systems

C. Compensation Systems

1. Sufficient Insurance Cover To Be Required for Private Health Establishments

2. Private Indemnity (Medical Protection Society)

D. Relationships Among the Compensation Systems, the Liability Systems, and the Regulatory Systems

II. The Details of the Applicable Liability and Compensation Systems

A. Criteria Defining Qualification for Compensation

1. Liability Based on Fault

2. The Role of the South African Constitution, 1996

3. Nature of Damages and Compensation

B. Causation and “Loss of Chance”

1. General Rules on Causation

2. “Loss of a Chance”

C. Liability for Failure to Obtain Informed Consent

D. Matters of Proof and Gathering of Evidence

1. Matters of Proof

a. General

b. Gathering of Evidence

III. Available Empirical Data on Medical Errors and Adverse Events, the Operation of the Systems Designed to Prevent and/or Redress such Errors and Events, and the Prevalence and Impact of Measures Designed to Reduce Medical Errors and Adverse Events, Improve System Performance, or Reduce System Costs

IV. Attitudes and Concerns About the Liability and Compensation Systems

Medical Malpractice and Compensation in the UK

Introduction

I. The Context of Medical Malpractice Liability

II. Recent Empirical Evidence on the Numbers and Funding of Claims

A. England

B. Scotland

C. Summary

III. NHS Redress Act 2006

IV. Patients’ Rights Bill in Scotland: The No-Fault Compensation Review Group Report (McLean Report)

V. Basis of Liability for Medical Injury

A. Contract, Tort, and Delict

B. The Requirements of Negligence

C. Duty of Care

D. Standard of Care

E. Causation

1. Difficulties in Proving Causation in Clinical Negligence Cases

2. The Burden of Proof

3. The “But For” Test

4. Cumulative Causation

5. Material Increase in Risk

6. Alternative Causation

7. Reinstating McGhee: Fairchild

8. The Scope of Fairchild and Clinical Negligence Cases

9. Loss of a Chance

VI. Reforming the Costs of Civil Litigation in England and Wales: Implications of the Jackson Report for the Costs of Clinical Negligence and the Ministry of Justice Reform of Legal Aid

A. Jackson Report

B. Reform of Legal Aid in England and Wales

Conclusion

Medical Malpractice and Compensation in Global Perspective: How Does the U.S. Do It?

Introduction

I. Details of the Applicable Regulatory and Liability/Compensation Systems

A. Regulating the Delivery of Medical Care

B. Liability/Compensation Systems

1. Fault-Based (Negligence)

2. No-Fault Liability (Strict Liability)

C. Limitations on Liability/Contracting out of Liability

D. Immunity from Liability

II. Empirical Data on Medical Errors/Adverse Events and Malpractice Litigation

A. How Common Are Medical Errors and Adverse Events?

B. Malpractice Litigation

1. Claiming Frequency (relative to rate of medical error/adverse events)

2. Compensation Patterns and Time Trends

3. Impact of Caps on Non-Economic Damages

4. Accuracy of the Liability System

5. Frivolous Lawsuits

6. Cost of Medical Errors/Adverse Events

7. Cost of the Liability System

III. Attitudes and Concerns About the Liability and Compensation Systems

IV. Why Do Things Look the Way They Do?

V. What Have We Learned by Studying Texas?

A. Who Decides Malpractice Cases?

B. Does it Matter How Much the Jury Awards in a Malpractice Case?

C. How Much Coverage Do Physicians Have?

D. Do Changes in the Tort System (i.e., increases in the number of claims, or payouts per claim) Help Explain the Malpractice Crises that Hit the United States in 2000–2003?

E. Impact of Tort Reforms on Claim Frequency and Payouts

Conclusion

Medical Malpractice and Compensation: Comparative Observations

Introduction

I. Making Sense of Diversity

A. A Diversity of Legal Mechanisms

1. Liability systems

2. Alternative compensation systems

3. Other regulatory and complaints mechanisms

B. The Wider Context

1. The substantive legal context

2. The wider litigation process

3. The health care context

C. Comparative Functional Analysis

II. Assessment of Liability-Based Approaches

A. Compensation

1. Mechanisms for dealing with organizational complexity

2. Adaptation of the Requirements of Causation and Proof

3. Patients’ Rights and Disclosure Duties

B. Prevention

1. The deterrent effect of liability rules

2. Pushing prevention too far? Defensive medicine and related issues

C. Accountability

D. Weighing the Evidence

1. Public controversy and narratives of crisis

2. Empirical evidence

III. Assessment of No-Fault Alternatives

A. Introduction

B. New Zealand: an exclusive no-fault regime

C. The Nordic Patient Insurance Schemes

D. France: Compensation on the Basis of National Solidarity

E. Comparison and Evaluation

Conclusion

Publications

Medical Malpractice and Compensation in Global Perspective: Introduction

Medical Malpractice in Austria

A Bridge over troubled Waters: The Development of Medical Malpractice Litigation in Brazil

Canadian Medical Malpractice Law in 2011: Missing the Mark on Patient Safety

Yangge Dance: the Rhythm of Liability for Medical Malpractice in the People’s Republic of China

Medical Malpractice and Compensation in France

Medical Malpractice and Compensation in Germany

Medical Malpractice: The Italian Experience

The Law of Medical Misadventure in Japan

Treatment Injury in New Zealand

Medical Malpractice and Compensation in Poland

Malpractice in Scandinavia

Medical Malpractice and Compensation in South Africa

Medical Malpractice and Compensation in the UK

Medical Malpractice and Compensation in Global Perspective: How Does the U.S. Do It?

Medical Malpractice and Compensation: Comparative Observations

Publications

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