Cases on Medical Malpractice in a Comparative Perspective

Introduction

Many providers of health care services and their insurers are particularly worried about growing medical malpractice. Through an increasing case law, which seems to expand the liability of providers of medical services, the price of insurance coverage for medical malpractice has been rising dramatically in many European countries. This tendency seems to be most apparent in Germany where the evolution in case law towards increased medical malpractice liability does not seem to have come to an end yet. Serious questions arise as a consequence of the medical malpractice explosion in Germany and other countries. One problem is that case law seems to require ever higher standards of care, whereby it is uncertain whether in the public system of provision of medical services (with limited budgets) these very high standards of care can generally be complied with. The evolution towards an expanding medical malpractice liability might give rise to a situation whereby it is unclear whether the very high standard of care required by the case law can be paid for through the health care system. Hence, one can not avoid the fact that there are potentially serious economic consequences in an increasingly rigorous medical malpractice regime. The question arises whether politicians responsible for the financing of the health care system, are aware of these economic consequences. Obviously, in some cases the health care providers have not even followed the minimum level of care that may be required from an average doctor. This may be due to many causes. A lack of adequate organisation in hospitals which are short of financial resources and a high amount of stress for physicians may be among them and the impact of these factors is often apparent in the case law.

These and other questions merit further research. This project aims at examining the situation with respect to medical malpractice in a number of European legal systems. The goal of the research project undertaken is particularly to examine whether some general tendencies can be found with respect to evolutions in medical malpractice law and their economic effects.
 

Methodology

1. Case studies

Obviously many comparative studies addressing the state of medical malpractice law in Europe are readily available. However, most of these studies mainly provide an overview of the existing legal system (and usually a comparative analysis), but they do not always allow the assessment of the impact of these differences in specific cases. Therefore, in this project, a case method has been chosen in order to identify some potential similarities and differences in legal systems. The advantage of such a case method is that it will allow us to show which legal notions actually play a role in the production of a specific result in the various legal systems. Moreover, the case method allows to make comparisons with respect to the results in specific cases. It may turn out that the victims in some countries may get compensation where victims in other countries would not, in a similar situation.

Moreover, comparisons of solutions based on actual cases will also allow us to give some indication of the price of the medical malpractice bill. In that respect attention should for in-stance be paid to the compensation for non-pecuniary loss in a particular legal system. It may well be that there are less differences between legal systems when it comes to a finding of liability, but more differences with respect to the magnitude of compensation. The latter is obviously highly important from an insurance point of view. The cases have been selected by Ecclesia, in co-operation with the European Centre for Tort and Insurance Law and METRO. The facts of actual cases which have played a role in German case law (but not all of which have been published) were provided to country reporters who were asked to provide an assessment of the facts from the perspective of their legal systems.

2. Comparative law

This comparative case method allows for a comparative analysis of the way that similar cases will be dealt with within different legal systems. The starting point for the project is the concern about the expansion of medical malpractice in Germany. That is why German cases have been chosen as a starting point, since that is where medical malpractice in Europe has probably been most developed. In addition a paper describing the state of medical malpractice law in Germany has been provided. This paper will allow a better understanding of the divisions in the various cases. Moreover, it allows the country reporters to understand some of the key issues playing a role in German medical malpractice law. Finally, the cases have also been analysed from a German legal perspective in the German country report, drafted by Prof. Schiemann.

For the comparative research a number of interesting legal systems have been chosen. Given the limited scope of the project it did not seem necessary to address all European countries. The goal of the project is indeed to examine whether there are differences in methodology, result and awards of damages between a variety of legal systems and notably to discover in what way they differ from the German approach. This goal can be achieved without necessarily addressing all European countries. The aim was to have at least a good spread between German oriented countries (Austria, Germany, Switzerland), Southern countries (France, Portugal) and Western European countries like Belgium and the Netherlands. Moreover it seemed important to include a common law country. For that reason English law has been included. Finally, it is not possible to discuss medical malpractice in Europe without addressing the Scandinavian model. Therefore Sweden has been included as well.

3. Economic analysis

As was indicated in the problem definition, one of the goals of this research project is to examine some of the economic consequences of expanding medical malpractice law. It is obviously not possible within the relatively limited scope of the research project, to go into specific economic questions in great detail. These obviously also belong to the expertise of economists rather than of lawyers. However, on the basis of the comparative case methodology chosen it may be possible to provide at least an indication of the actual costs of medical malpractice liability in a particular country. By focusing on the specific facts of these cases, some of the economic questions may also be answered. The economic analysis of law has paid extensive attention to medical malpractice. Some of this literature will be used when drafting the conclusions of the comparative research.

Framework

The order for this project has been given by two institutions: Ecclesia Versicherungsdienst GmbH (Germany) jointly with the Deutsche Krankenhausgesellschaft. The project is carried out by co-operation between two academic institutions: the Maastricht European Institute of Transnational Legal Research (METRO) carried out the project jointly with the European Centre for Tort and Insurance Law (Vienna, Austria).