Medical Malpractice

Medical Malpractice in a 
Comparative Perspective 

Executed by:

METRO
Maastricht University
P.O. Box 616
6200 MD Maastricht
tel. +31 43-3883060
fax. +31 43 3259091

ECTIL
European Centre of Tort and Insurance Law
Landesgerichtsstraße 9a-11
A-1080 Vienna
tel. +43 1 40 127 1688
fax. +43 1 40 127 1685

Medical Malpractice in a comparative perspective

Michael Faure

Introduction

A.        Problem Definition

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 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 doubtful whether in the public system of provision of medical services (with limited budgets) these very high standards of care can generally be complied with. If this becomes doubtful, the evolution towards an expanding medical malpractice might give rise to a situation whereby through medical malpractice cases on an ex post basis, a relative high duty of care is required, whereby it seems doubtful whether this duty of care can be paid for through the health care system. Hence, one can not escape the fact that there are serious economic consequences of an increasing medical malpractice regime, whereby the question arises whether the 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, lacking financial means and a high amount of stress for physicians may be some of the causes. In case law the question will often arise whether these causes justify medical malpractice.

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 tendencies can be found with respect to evolutions in medical malpractice law and their economic effects.

B.        Methodology

1.         Case studies

Obviously many comparative studies addressing the state of medical malpractice law in Europe are readily available[1][1]. 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 to assess the consequences 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 various legal systems to come to a specific result. 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 to give some indication of the price of the medical malpractice bill. In that respect attention should for instance have been 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 themselves 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 which not all have been published) have been provided to country reporters which have been asked to answer to the given set of facts from the perspective of their legal system.

This comparative case methodology allows for a comparative analysis of the way that one similar case would be dealt with within different legal systems. Starting point for the project is the worry concerning the expansion of medical malpractice in Germany. That is the reason that German cases, where medical malpractice in Europe has probably been most developed, have been chosen as a starting point. As a background a paper has also been provided which describes the state of medical malpractice law in Germany. This paper will allow a better understanding of the divisions in the various cases. Moreover, this background paper allows the country reporters to understand some of the key issues which play a role in German medical malpractice law. Moreover, the German 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 as well. Finally, it is not possible to discuss medical malpractice in Europe without addressing the Scandinavian model. Therefore Sweden is included in the project as well.

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 the cases provided, also some of the economic questions may 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.

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 as a co-operation between two academic institutions: the Maastricht European Institute of Transnational Legal Research (METRO) has carried out this project jointly with the European Centre of Tort and Insurance Law (Vienna, Austria).

The academic responsibility and co-ordination for this project lies with Prof.Dr. Michael G. Faure, LL.M. (Maastricht) and Prof.Dr. Helmut Koziol (Vienna). Both are Directors of the European Centre of Tort and Insurance Law.

The country reports are drafted by experts in medical law or tort law in the various countries. The following academics have drafted the country reports: Prof.Dr. Herman Cousy, University of Leuven, Belgium; Prof.Dr. Dahlman and Lotta Wendel, University of Lund, Sweden; Prof.Dr. Michael Faure, Institute for Transnational Legal Research, Maastricht University, the Netherlands; Prof.Dr. Suzanne Galand-Carval, University of Paris, France; Prof.Dr. Heinz Hausheer, University of Bern, Switzerland; Prof.Dr. Bernhard A. Koch, Institute for Roman Law,University of Innsbruck and Prof.Dr. Helmut Koziol, Institute for Civil Law, University of Vienna, Austria; Prof.Dr. Jorge Sinde Monteiro and Maria Manuel Veloso, University of Coimbra, Portugal; Prof.Dr. Horton Rogers, University of Leeds, United Kingdom; Prof.Dr. Gottfried Schiemann, University of Tübingen, Germany; Prof.Dr. Carel Stolker and Mr. Shirin Slabbers, E.M. Meijers Institute, University of Leiden, the Netherlands.