Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings

Table of Contents

1. Frontmatter

2. Chapter 1. Compensation Schemes and Extra-Judicial Solutions in Case of Medical Malpractice. A Commentary on Contemporary Arrangements

   Dobrochna Bach-Golecka

   Abstract

   The article deals with compensation schemes and alternative methods of dispute resolution in situations of damages resulting from medical malpractice. The topic is analysed within different perspectives. Firstly, the examination of human rights and public international law provisions is performed in order to identify the meaning of the right to health and the right to healthcare as a possible benchmark of healthcare provision in a domestic context. Moreover, this international legal approach is supplemented with European Union law analysis. Secondly, the relevant contemporary phenomena in the provision of healthcare are being dealt with. In this context patients are regarded as consumers of healthcare services while within the contemporary approach both parties of the medical relationship are treated as equal in their competence to make valid decisions concerning prospective treatment. Nowadays the authority of physician is based in her or his professional qualifications and the patient’s competence is rooted in the construction of informed consent procedure. Therefore the current process of providing healthcare resembles a scientific endeavour rather than a relationship with paternalistic legal element, it is not any more a dual medical contract but a situation concentrated on healthcare activities, with multilateral dimension and co-shared decision-making, alongside many lines of internal communication.

   Those characteristics of medical service are crucial within the process of identifying patterns of compensation arrangements and extra-judicial solutions in case of medical malpractice. The article aims at evaluating the possible and most often used methods of alternative dispute resolution in healthcare context within selected jurisdictions.

3. Chapter 2. L’indemnisation des dommages résultant des soins de santé et les alternatives aux procédures judiciaires – Rapport belge

   Catherine Delforge, Camille Delbrassinne

   Résumé

   Différentes voies coexistent et peuvent être mises en œuvre en présence d’un accident médical. À côté des procédures judiciaires classiques, devant les juridictions civile et pénale, des voies alternatives peuvent être mobilisées, via une saisine du Fonds des accidents médicaux ou un accord amiable obtenu à l’issue d’une médiation. En l’état actuel du droit belge et des pratiques, malgré ses difficultés probatoires, son coût et ses lenteurs, la voie judiciaire, principalement celle d’une procédure civile, reste privilégiée par une majorité de patients.

4. Chapter 3. Compensation Schemes for Damages Caused by Healthcare in Brazil

   Gisela Sampaio da Cruz

   Abstract

   Analysis of medical liability requires a good measure of care. Contemporary Brazilian law on civil liability has evolved beyond the traditional psychological concept of fault, and demands, instead, compliance with standards of conduct and standard procedures as evidence of physicians’ diligence in their professional practice. These standards and procedures are difficult to describe in the abstract and must be extracted from the professional practice of the medical community. Therefore, this article intends to address the current challenge in medical liability law to find mechanisms that can reconcile the expert opinion of medical witnesses and the courts’ (and other decision-makers’) duty to interpret the facts of the case within a legal framework, in order to ensure a fair and reliable application of professional standards and conduct.

5. Chapter 4. La responsabilité médicale et hospitalière en droit civil québécois : Principes généraux et alternatives à la voie judiciaire

   Patrice Deslauriers, Sebastian Fernandez

   Résumé

   Après avoir procédé à un rappel des principes applicables dans le domaine de la responsabilité civile médicale et hospitalière en droit civil québécois et, au passage, à une revue de la jurisprudence en cette matière, les auteurs procèdent à une revue de la réforme de la procédure civile québécoise entrée en vigueur le 1^er janvier 2016 et expriment leurs réflexions quant aux alternatives à la voie judiciaire s’offrant aux parties dans le cadre d’un litige en matière médicale ou hospitalière au Québec.

6. Chapter 5. Medical Mal Practice and Mediation in Cyprus: Mediation as a Potential Way of Resolving Medical Mal Practice Disputes

   Anna Plevri

   Abstract

   The aim of the article is to focus upon situations of medical mal practice in Cyprus and to analyze mediation as a possible means of resolving those disputes. Therefore the basic principles and features of mediation as a method of alternative dispute resolution (ADR) method are presented and their application in Cyprus, especially within the contexts of bioethical disputes. Present legislative framework of mediation in Cyprus is examined and supplemented with proposal de lege ferenda. The paper focuses upon examples of using mediation in medical context in other jurisdictions, in particular Italy, Greece, United States and China.

7. Chapter 6. Compensation for Damages in the Cases of Medical Malpractice: Estonian Perspective

   Dina Sõritsa, Janno Lahe

   Abstract

   Although the patients in Estonia see the main problem of Estonian health-care in availability of healthcare, the errors or misdiagnosis made by healthcare providers occur in Estonia as well. The result of such error or misdiagnosis might be the pecuniary and non-pecuniary damage of the patient. Therefore the question arises which are the patient’s possibilities for compensation.

   In this paper the compensation for damages in the cases of medical malpractice is discussed in the context of Estonian law. The paper analyses both court and extrajudicial proceedings and focuses among other issues on contractual and delictual liability of the healthcare provider, required standard of care, burden of proof and damages. The discussion of alternatives to court proceedings covers also a draft on creation of the healthcare provider’s liability insurance.

8. Chapter 7. The French Medical Accident Compensation Scheme. A Critical Assessment of the Patients’ Rights Act of 4 March 2002

   Jonas Knetsch

   Abstract

   The French Patients’ Rights Act of 4 March 2002 has introduced a general compensation system for healthcare-related injuries and thereby established an attractive alternative to the traditional tort-based lawsuit. Since then, patients may bring compensation requests before one of the 25 regional conciliation and compensation commissions, whose task is to assess the claim and, if appropriate, to deliver a legal opinion to the healthcare insurer (in case of medical malpractice) or the French compensation office ONIAM (in case of therapeutic hazard). More than 15 years after the Patients’ Rights Act came into force, this report intends to assess the system’s performance and to outline prospects for reform.

9. Chapter 8. Legal Questions Concerning Medical Malpractice Liability: Substantive Law and Its Enforcement

   Country Report Germany Andreas Spickhoff

   Abstract

   The following contribution gives an overview of the German Law of Medical Liability including the law of evidence. It includes a look on the purposes of medical malpractice liability, the professional standard, the presentation in trial and proof including the position of experts, the burden of proof, especially the very special German rule for reversal of the burden of proof in the medical malpractice lawsuit in cases of gross malpractice, the difference between state liability and private liability and out-of-court dispute resolutions (arbitration boards and expert panels as well as mediation). In the end the contribution deals with the lex ferenda in the German discussion.

10. Chapter 9. Challenges and Contradictions About Medical Malpractice in Hungary

    Balázs Tőkey

    Abstract

    The current situation of medical malpractice is controversial in Hungary. On one hand the number of medical practice claims is rather law, the courts confirm the fault of healthcare providers quite often and the judicial practice have changed in several aspect to help the plaintiffs who are in disadvantageous position. On the other hand the final compensation are rather low, the liability insurances of the healthcare providers do not ensure real coverage and the alternative dispute resolutions are almost unknown. However, major reforms are not expected in this field in the near future.

11. Chapter 10. The Judge, the Legislator and … the Mediator. The Long Journey of Medical Malpractice in Italy

    Alessandra De Luca

    Abstract

    This contribution intends to describe the main features and the evolution of the system to compensate patients for damages caused by healthcare in Italy. In the first part, it outlines the main traits of the regulation developed by the courts on the basis of the general principles established by the civil code, highlighting the gradual shift in favour of patients. Then, it concentrates on the significant legislative measures passed in the last few years in order to tackle the crisis of medical malpractice litigation and reduce the overall costs of the system. The second part focuses on the development of alternative methods of dispute resolution in the field of medical malpractice. The two main ADR processes on which the Italian legislator relies as tools to reduce the number of cases dealt with by the courts are compulsory mediation, established in 2010, and the “pre-action expert report” (accertamento tecnico preventivo—ATP), that, according to the recent Gelli Bianco law is now the main ADR process for all medical malpractice cases.

12. Chapter 11. Liabilities for Damages Resulting from Medical Treatment and Dispute Resolution System in Japan

    Hideki Ishibashi, Chihara Watanabe

    Abstract

    This paper aims to clarify the current situation on liabilities for damages resulting from medical treatment and alternative dispute resolution (ADR) for medical accidents in Japan. Regarding liabilities for damages resulting from medical treatment, this paper focuses on compensation schemes for damages caused by medical malpractice and those for damages caused by the side effects of drugs. As to the former, problems related to negligence and causation among the requirements of tort liability are taken up, and especially concerning causation, the so-called “loss of chance” doctrine is discussed. As to the latter, critical reviews are made on a recent decision of the Supreme Court of Japan on product liability of pharmaceutical companies. Since late 1990s, the number of filing of medical malpractice cases increased and ADR methods have been developed and promoted for resolving medical accident cases instead of lawsuits. In addition to civil conciliation in the courts, local bar associations provide arbitration or mediation services to promote prompt and reasonable resolution based on expertise. It refers to non-fault compensation schemes and medical accident investigation system as well as other organization providing ADR service.

13. Chapter 12. Innovating Compensation for Medical Liability in the Netherlands

    Berber Laarman, Arno Akkermans

    Abstract

    In the Netherlands, concerns about the negative experiences of patients with legal procedures following adverse medical events have led to potentially profound changes in the field of procedural complaint- and compensation law. This chapter offers insight into the Dutch legal framework of compensation for damage caused by healthcare. We start by presenting the traditional framework in the paragraph on the Dutch landscape of medical liability. Having laid the groundwork, we try to explain the innovations that have recently been introduced, in the paragraph dealing with efforts for reform. We elaborate on the problems patients experience when they claim for compensation, the impact legal procedures can have on both patients and healthcare professionals, the recent changes in legislation trying to address these problems, and how these changes might entail a new reality force both healthcare and legal professionals.

14. Chapter 13. Medical Injury in New Zealand

    Stephen Todd

    Abstract

    In New Zealand the recovery of compensation for medical injury has to be considered in the context of the country’s wide-ranging accident compensation scheme. Accordingly, this paper is structured around an account of the scheme and an assessment of how it operates. It starts with an overview of the core features of the scheme as they apply in the case of medical injury, with particular reference to situations which involve, or may involve, medical malpractice. Turning to the scheme as a whole, the paper considers both its history and, briefly, the extent of cover it provides for all injuries. This sets the scene for a detailed discussion of the cover for medical injury, or “treatment injury” as it is called. Special attention is given to the difficulties in defining the ambit of that cover in the context of a scheme which, for the most part, does not extend to providing compensation for victims simply of illness and disease, and also to the particular problems posed by so-called “wrongful birth” cases. There follows an examination of the operation of the scheme—the benefits that are payable, how the benefits are delivered and how the scheme is funded. And finally there is an attempt to evaluate the scheme and to make some comparisons with claims for medical injury founded upon tort liability.

15. Chapter 14. Medical Negligence Proceedings in Singapore: Instilling a Gentler Touch

    Dorcas Quek Anderson

    Abstract

    Medical malpractice is an area that traverses a wide range of issues in any society—the quality and cost of healthcare, the insurance industry, the cost of litigation, the impact on medical practice and the heightened emotions arising from injuries. Like many countries, Singapore has been grappling with these issues through implementing various reforms in the legal and healthcare sectors concerning compensation for medical negligence. While monetary compensation has historically been obtained through legal proceedings in the Singapore courts, there is a growing shift towards adopting a gentler touch to deal with the unique issue of medical malpractice. This article examines the current legal framework for medical negligence in Singapore, and the different ways in which the adversarial approach to medical malpractice proceedings is being changed. It also proposes ways to consolidate and refine the current reforms.

16. Chapter 15. Damages in Medical Malpractice Cases and Alternatives to Court Proceedings: A Slovenian Perspective

    Damjan Možina, Karmen Lutman

    Abstract

    In Slovenian law, the compensation scheme for medical practice is primarily organized within the court system. Its main function is the recovery of damage (indemnity), while it has also a preventive character. Slovenian courts are rather reluctant to award damages in an amount exceeding the “objective” amount of damage (punitive damages). There are several problematic aspects of classical damages claims in medical liability cases, such as the costs and the length of proceedings, the negative effect of a claim on the doctor-patient relationship, a “defensive medicine” resulting of damages claims and being focused on a mistake of the doctor rather than on promotion of safety in the healthcare system. The patients have also difficulties in proving the breach of professional standards due to circumstances such as the lack of expert knowledge or difficult access to evidence. Therefore, alternatives to court proceedings are very welcome, although not very often used in practice. At its earliest stage, a dispute can be resolved in a procedure before a competent person of the health service provider. If no agreement is reached, the patient can start proceedings before the Commission of the Republic of Slovenia for the Protection of Patient Rights. Some further alternative dispute resolution methods are mediation and arbitration.

17. Chapter 16. Excessive Litigation for Harm Arising from Medical Malpractice in South Africa: Reasons, Consequences and Potential Reform

    Bernard Wessels

    Abstract

    South Africa does not have a statutory compensation scheme for harm arising from medical malpractice. Victims who suffer harm in this context must institute common law delictual or contractual claims in a civil court in an attempt to obtain compensation. They are not assisted by a reversal of the burden of proof and so they must prove all elements of liability on a balance of probability. They can file the claim against the person responsible for their harm, or they can try to hold the latter’s employer vicariously liable. It appears that most victims institute delictual proceedings against the employer of the person who caused their harm in a culpable and wrongful manner. Although the plaintiff faces particular challenges as far as proof of factual causation and negligence is concerned, we have seen a significant increase in medical malpractice litigation in the last decade. In addition, a remarkable expansion of state liability can be observed for harm arising from medical malpractice in the public health sector. This chapter investigates the reasons for, and consequences of, the increased litigation in respect of medical malpractice. Furthermore, the use of alternative dispute resolution procedures in the context of medical malpractice and the regulation of the medical health profession by the Health Professions Council of South Africa. Lastly, attention is given to certain proposals for reform of the law relating to the compensation of harm arising from medical malpractice.

18. Chapter 17. Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings

    National Report: Taiwan Hsiu-I Yang

    Abstract

    Taiwan is renowned for her healthcare delivery system that provides all-inclusive comprehensive healthcare services (physician fee, hospitalization, prescription drugs, dental care, Chinese medicine) to the entire 23 million citizens through National Health Insurance since 1996. Taiwanese patients can easily access to needed care at any level of institutions, from clinic to medical center. Accordingly, physician shopping is not uncommon if the patient finds the physician not trustworthy or the medical outcome is not satisfactory. The severity and prevalence of medical injury is a rather under-discussed topic, while the main debate of medical malpractice has been directed by physician’s society and focused mainly on the decriminalization of physicians’ liability.

    This report first described the featured criminal-first legal culture to provide the backbone of understanding the whole medical malpractice scheme in Taiwan. Part 2 briefly discussed the conventional fault-based legal liability for medical injury and three no-fault compensation schemes in Taiwan. Part 3 introduced the procedural endeavors in the past 20 years to decriminalize medical malpractice by building up alternative dispute resolutions. To give the readers a truthful picture, this report is based on solid empirical studies, scholarly commentaries, and governmental statistics.

19. Chapter 18. Alternative Compensation Schemes for Medical Malpractice in the United Kingdom

    Colm Peter McGrath

    Abstract

    This chapter examines the state of law and regulation concerning medical malpractice in the UK in the context of alternative compensation or redress schemes available for patients who find themselves injured in the course of a healthcare interaction. A reader will find that the overwhelming majority of such injuries are left to be dealt with by more or less unaltered private law rules. It is characteristic of the English common law that there is little by way of a lex specialis that deals with such injuries. Indeed, suggestions of generally implementing anything akin to many continental-style no-fault compensation or redress schemes have been rejected on grounds of the likely cost of doing so. Nevertheless, there are a number of small scale, specific schemes, along with a redress scheme for relatively low-level injuries now in operation in Wales, and a number of specific procedural requirements in the context of malpractice litigation generally that are worth considering as relevant in this space.