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

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Part of the Ius Comparatum - Global Studies in Comparative Law book series (GSCL,volume 53)

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.

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Notes

  1. 1.

    Within the right to health and healthcare a special focus should be given to the normative force of international documents, such as the Universal Declaration of Human Rights and the International Covenant of Economic, Social and Cultural Rights. As for the latter document, such countries as Cuba and the United States of America have signed but not ratified the treaty while Malaysia, Mozambique, Saudi Arabia, Singapore or United Arab Emirates have neither signed nor ratified the treaty. Hence, the task of comparative international law would be to evaluate the binding force of international legal instruments in order to ascertain whether those are valid or not for a particular state, irrespectively of the philosophical inquiry about the force of legal instrument as such (cf. Schauer 2015).

  2. 2.

    Facilities necessary for implementing the right to health are varied in their nature and include such determinants of health as safe and potable drinking water, sanitation infrastructure, hospitals and healthcare clinics, essential drugs (scientifically approved and unexpired) and trained medical personnel with domestically competitive salaries. It seems therefore that the notion of medical malpractice should be related to the possible infringements of the above-stated requirements of health availability; General Comment No. 14, para. 12.

  3. 3.

    General Comment No. 14, para. 43.

  4. 4.

    This conclusion is strengthened by precise statement of the art. 2 para 1. of the International Covenant: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

  5. 5.

    The idea is based upon the soft law document adopted in September 2011 entitled Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Bach-Golecka 2014; De Schutter et al. 2012).

  6. 6.

    Montgomery v Lanarkshire Health Board [2015] UKSC 1; [2015] AC 1430.

  7. 7.

    I am grateful to Prof. Patricia O’Sullivan, Director of Research and Development in Medical Education at San Francisco School of Medicine, University of California, for bringing my attention to those important elements of healthcare model.

  8. 8.

    Therefore the Court developed specific rights and requirements, both for services providers and services recipients, on specific character of hospital treatment (in the case C-368/98 Vanbraekel; joined cases C-157/99 Geraets-Smits and Peerbooms; case C-8/02 Leichtle), on procedural provisions concerning prior authorization (in the joined cases C-385/99 Müller-Fauré and Van Riet; case C-56/01 Inizan; case C-145/03 Annette Keller; C-372/04 Watts) and in the most recent case-law, on the situation of insufficient resources in the healthcare system (in the case C-173/09 Elchinov; case C-268/13 Petru).

  9. 9.

    There is a possibility to include a contractual obligation by healthcare provider to achieve certain outcome, most often in case of aesthetic medicine. In Europe, especially in German speaking countries, this type of healthcare activities is not deemed in high esteem within professional medical circles which may result in low social acceptance, with simultaneous paradoxical increase in the number of patients (Brandl and Schrader 2019).

  10. 10.

    This argument may be evaluated on a twofold basis: within individual perspective the level of prospective compensation is usually lower than secured in judicial proceedings; within collective (general) perspective fixed compensation amounts can provide significant monetary benefits.

  11. 11.

    One may conclude that the there is a negative correlation between the scope of damages subject to compensatory proceedings and the financial amount of the fixed compensation claim. Hence, the broader the scope of damages’ types, the lower amount of individual compensatory award.

  12. 12.

    The psychological element of mediation procedures indicate also the need to train physicians and other members of healthcare teams in effective communication skills, dialogue, and empathic sensitivity.

  13. 13.

    The Guidelines were adopted by the UN General Assembly in resolution 39/248 of 16 April 1985, later expanded by the Economic and Social Council in resolution 1999/7 of 26 July 1999, and revised and adopted by the UN General Assembly in resolution 70/186 of 22 December 2015.

  14. 14.

    As a relevant example may serve the document developed under the patronage of the European Academy of Legal Medicine, presenting European Guidelines on Medico-Legal Methods of Ascertainment and Criteria of Evaluation in Medical Responsibility and Liability.

References

  • Agarwal R, Gupta A, Gupta S (2019) The impact of tort reform on defensive medicine, quality of care and physician supply: a systematic review. Health Serv Res 54:851–859

    Google Scholar 

  • Amaral-Garcia S (2019) Medical malpractice appeals in a civil law system: do administrative and civil courts award noneconomic damages differently? Law Soc Rev 53:386–419

    CrossRef  Google Scholar 

  • Antoci A, Maccioni AF, Galeotti M, Russu P (2019) Defensive medicine, liability insurance and malpractice litigation in an evolutionary model. Nonlinear Anal Real World Appl 47:414–435

    CrossRef  Google Scholar 

  • Bach-Golecka D (2014) Ekstraterytorialność a prawo do ochrony zdrowia. Koncepcja praw podstawowych (core obligations). Polski Przegląd Stosunków Międzynarodowych 4:51–71

    Google Scholar 

  • Bach-Golecka D (2015) Mobilny pacjent. Korzystanie z transgranicznej opieki zdrowotnej w prawie Unii Europejskiej. Instytut Wydawniczy EuroPrawo, Warszawa

    Google Scholar 

  • Bączyk-Rozwadowska K (2013) Odpowiedzialność cywilna za szkody wyrządzone przy leczeniu. Towarzystwo Naukowe Organizacji i Kierownictwa, Toruń

    Google Scholar 

  • Bandelow NC, Vogeler CS, Hornung J, Kuhlmann J, Heidrich S (2019) Learning as a necessary but not sufficient condition for major health policy change: a qualitative comparative analysis combining ACF and MSF. J Comp Policy Anal 21:167–182

    Google Scholar 

  • Blutman L (2010) In the trap of a legal metaphor: international soft law. Int Comp Law Q 59:605–624

    CrossRef  Google Scholar 

  • Brandl D, Schrader V (2019) Controversies in aesthetic medicine. The frame conditions 1: society and identity of the aesthetic doctor. Cosmetic Med 5:15–19

    Google Scholar 

  • Brogiene D (2019) The defensive medicine isn’t the best way to avoid mistakes. World Med J 65:37–39

    Google Scholar 

  • Brown G (2016) The universal declaration of human rights in the 21st century: a living document in a changing world. Open Book Publishers, Cambridge

    CrossRef  Google Scholar 

  • Cheng KY (2015) Truth-telling, best interests, and autonomy. In: Pope J (ed) Patient rights: ethical perspectives, emerging developments and global challenges. Nova Science Publishers, New York, pp 97–102

    Google Scholar 

  • Costa-Font J, Courbage C, McGuire A (eds) (2009) The economics of new health technologies. Incentives, organization, and financing. Oxford University Press, Oxford

    Google Scholar 

  • de Mequita B, Hunt P, Khosla R (2010) The human rights responsibility of international assistance and cooperation in health. In: Gibney M, Skogly S (eds) Universal human rights and extraterritorial obligations. University of Philadelphia Press, Philadelphia, pp 104–129

    Google Scholar 

  • De Schutter O et al (2012) Commentary to the Maastricht Principles on extraterritorial obligations of states in the area of economic, social and cultural rights. Hum Rights Q 34:1084–1169

    CrossRef  Google Scholar 

  • Durovic M, Micklitz HW (2016) Internationalization of consumer law: a game changer. Springer

    Google Scholar 

  • Eigmüller M (2013) Europeanization from below: the influence of individual actors on the EU integration of social policies. J Eur Soc Policy 23:363–375

    CrossRef  Google Scholar 

  • Ferrara SD, Boscolo-Berto R, Viel G (eds) (2013) Malpractice and medical liability. European state of the art and guidelines. Springer, Heidelberg

    Google Scholar 

  • Fosch Villaronga E (2019) Artificial intelligence, healthcare and the law: regulating automation in personal healthcare. Routledge, London

    Google Scholar 

  • Franck TM (1999) The empowered self. Law and society in the age of individualism. Oxford University Press, Oxford

    Google Scholar 

  • Glenn Cohen I (2015) Patients with passports: medical tourism, law and ethics. Oxford University Press, Oxford

    Google Scholar 

  • Gostin LO (2014) Global health law. Harvard University Press, Cambridge

    CrossRef  Google Scholar 

  • Greer SL (2013) Avoiding another directive: the unstable politics of European Union cross-border health care law. Health Econ Policy Law 8:415–421

    CrossRef  Google Scholar 

  • Hall M (2013) Medical tourism. The ethics, regulation, and marketing of health mobility. Routledge, London

    Google Scholar 

  • Healy J (1999) Medical negligence: common law perspectives. Sweet & Maxwell, London

    Google Scholar 

  • Herring J (2012) Medical law and ethics. OUP, Oxford

    Google Scholar 

  • Holčapek T (2013) Medical and health law in the Czech Republic. In: Beran RG (ed) Legal and forensic medicine. Springer, Heidelberg, pp 245–259

    CrossRef  Google Scholar 

  • Koch BA (ed) (2011) Medical liability in Europe. A comparison of selected jurisdictions. De Gruyter, Berlin

    Google Scholar 

  • Langford M et al (eds) (2013) Global justice, state duties: the extraterritorial scope of economic, social and cultural rights in international law. Cambridge University Press, Cambridge

    Google Scholar 

  • Lima Marques C, Wei D (eds) (2018) Consumer law and socioeconomic development: national and international dimensions. Springer

    Google Scholar 

  • Malby B, Anderson-Wallace M (2017) Networks in healthcare. Managing complex relationships. Emerald Publishing, Bingley

    Google Scholar 

  • Marmot M (2015) The health gap. The challenge of an unequal world. Bloomsbury, London

    CrossRef  Google Scholar 

  • Martinsen DS, Diaz-Asensio JAM (2017) A judicialisation of healthcare policies in Denmark and Spain? The universalist healthcare model meets the European Union. Comp Eur Polit 15:414–434

    CrossRef  Google Scholar 

  • Mehlman MJ (2012) Professional power and the standard of care in medicine. Arizona State Law J 44:1165–1235

    Google Scholar 

  • Merlo A, Tang X (2019) Bargaining with optimism: identification and estimation of a model medical malpractice litigation. Int Econ Rev 60:1029–1061

    CrossRef  Google Scholar 

  • Micklitz HW, Saumier G (eds) (2018) Enforcement and effectiveness of consumer law. Springer

    Google Scholar 

  • Moyn S (2018) Not enough. Human rights in an unequal world. Harvard University Press, Cambridge

    CrossRef  Google Scholar 

  • Mwamburi AH, Fahm AGO (2018) Islam and human rights with special reference to the universal human rights and the Cairo declaration on human rights. Shariah J 26:123–140

    Google Scholar 

  • Natarajan P, Frenzel JC, Smaltz DH (2017) Demystifying big data and machine learning for healthcare. CRC Press

    Google Scholar 

  • Oliphant K (2013) Medical malpractice and compensation: comparative observations. In: Oliphant K, Wright RW (eds) Medical malpractice and compensation in global perspective. de Gruyter, Berlin, pp 513–562

    CrossRef  Google Scholar 

  • Olsen JA (2009) Principles in health economics and policy. Oxford University Press, Oxford

    CrossRef  Google Scholar 

  • Panesar A (2019) Machine learning and AI for healthcare: big data for improved health outcomes. Apress, London

    CrossRef  Google Scholar 

  • Paraskou A, George BP (2017) Legal and economic considerations surrounding reproductive tourism: emerging research and opportunities. Business Science Reference, London

    Google Scholar 

  • Quick P (2017) Regulating patient safety. The end of professional dominance? Cambridge University Press, Cambridge

    CrossRef  Google Scholar 

  • Reiser SJ (2009) Technological medicine. The changing world of doctors and patients. Cambridge University Press, Cambridge

    Google Scholar 

  • Safjan M (1998) Prawo i medycyna. Ochrona praw jednostki a dylematy współczesnej medycyny. Oficyna Naukowa, Warszawa

    Google Scholar 

  • Schauer F (2015) The force of law. Harvard University Press, Cambridge

    Google Scholar 

  • Skogly S (2006) Beyond national borders: states’ human rights obligations in international cooperation. Intersentia, Antwerp

    Google Scholar 

  • Sperling D (2019) Suicide tourism: understanding the legal, philosophical, and socio-political dimensions. Oxford University Press, Oxford

    CrossRef  Google Scholar 

  • Terpan F (2015) Soft law in the European Union – the changing nature of EU law. Eur Law J 21:68–96

    CrossRef  Google Scholar 

  • Toebes B (2009) Right to health and health care. In: Forsythe DP (ed) Encyclopedia of human rights. Oxford University Press, Oxford, pp 365–376

    Google Scholar 

  • Toraldo DM, Vergari U, Toraldo M (2015) Medical malpractice, defensive medicine and role of the “media” in Italy. Multidiscip Respir Med 10:1–7

    CrossRef  Google Scholar 

  • Van Keer RL, Deschepper R, Francke AL, Huyghens L, Bilsen J (2015) Conflicts between healthcare professionals and families of a multi-ethnic patient population during critical care: and ethnographic study. Crit Care 17:1–13

    Google Scholar 

  • Vollaard H (2017) Patient mobility, changing territoriality and scale in the EU’s internal market. Comp Eur Polit 15:435–458

    CrossRef  Google Scholar 

  • Watson K, Kottenhagen R (2017) Patients’ rights, medical error and harmonisation of compensation mechanisms in Europe. Eur J Health Law 25:1–23

    CrossRef  Google Scholar 

  • Winczorek J (2019) Dostęp do prawa. Ujęcie socjologiczne. Wydawnictwo Naukowe Scholar, Warszawa

    Google Scholar 

  • Young KG (2008) The minimum core of economic and social rights: a concept in search of a content. Yale J Int Law 33:113–175

    Google Scholar 

Documents

  • CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4).

    Google Scholar 

  • CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant). Adopted at the Fifth Session of the Committee on Economic, Social and Cultural Rights, on 14 December 1990 (Contained in Document E/1991/23).

    Google Scholar 

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Annex: Questionnaire—Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings

Annex: Questionnaire—Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings

A. Compensation Schemes for Damages Caused by Healthcare

  1. 1.

    Is the overall compensation scheme for medical malpractice organized within the court system or administrative system? Is it possible to discern a mixture (hybrid) way of procedural arrangements? Do compensation schemes serve additional punitive purposes or fulfill a pure indemnity function (without a personalization of healthcare damage)? What is the general evaluation of a particular compensation scheme in terms of efficiency and fairness? Is the possible negative evaluation prone to formulating proposals of gradual reforms or radical change?

  2. 2.

    What is the relevant normative framework for:

    1. (a)

      Defining and determining the existence of fault?

    2. (b)

      Establishing a relevant standard of care (is the level of the accepted medical knowledge (ars medica) determined domestically or with a specific reference to the medical science within international perspective? Is the other criterion used (i.a. bonus pater familias)? Is physicians’ obligation determined as a pure obligation of means, characterized by diligence and irrespectively of the attainment of a specific result or provided for as a specific type of the obligation of means (obligation renforée)?

    3. (c)

      Identifying the existence of an accidental risk related to the physicians’ performance (aléa thérapeutique)?

    4. (d)

      Determining the burden of proof? (is the patient required to demonstrate the physician’s fault, the causal connection and the received damage? are there instruments to strengthen patients’ weaker position such as reversal of the burden of proof, acceptance of the rule res ipsa loquitur)?

  3. 3.

    Are there differences in regulation concerning compensation schemes for medical malpractice in public and private hospitals?

  4. 4.

    Is there a tendency to limit the number of medical litigation cases? (i.a. pretrial conditions, specific initial requirements concerning the involvement of third parties (neutral medical experts), possible limits of attorneys fees, time limits for commencing litigation)?

  5. 5.

    Is there an inclination to use various mechanisms in order to diminish the amount of financial compensation (i.a. caps in the amount the plaintiff may receive/defendant may be required to pay, introduction of periodic payment rule rather than a lump sum of compensation)?

B. Alternatives to Court Proceedings

  1. 1.

    Are there any procedures with the aim to substitute court proceedings in case of medical malpractice? What is their legal basis? Do they operate as mandatory or voluntary procedures? Are there any experimental projects with the goal of reducing the negative impact of court proceedings, such as increasing volume and cost of malpractice litigation, lengthy litigation process, involvement of adversarial experts and lawyers, chilling and stigmatizing effect on medical errors transparency?

  2. 2.

    What is the overall aim and philosophy of those alternative proceedings? Are they based in cost-efficiency requirements for controlling medical liability costs? Are they aiming at strengthening patients’ rights? Is the primary goal of those procedures to improve quality and safety standards of healthcare? Do they possess a preventive character in order to deter a possible substandard of medical care?

  3. 3.

    Is there a public entity (agency) dealing with medical malpractice, striving to protect patients’ rights? What is the precise mandate of the institution? Are the health damages compensation procedures centralized in one body? Is it regarded as an efficient means to safeguard the interests of victims of damages caused by healthcare?

  4. 4.

    Has international arbitration of medical malpractice disputes been contemplated as a means of resolving claims in cross-border healthcare?

  5. 5.

    What is the specific character of the procedures aiming at substituting court proceedings? Is their efficiency evaluation available? Have any of the following programs been practiced?

    1. (a)

      Alternative dispute resolution (ADR) practices arranged between risk management professionals, insurers and patients (both formal and informal, such as i.a. presuit mediation programs or presuit voluntary binding arbitration)

    2. (b)

      Apology laws (“I am sorry” laws protecting statements of early regret, apology or fault, made to patients by healthcare practitioners, without the possibility to use them in medical malpractice litigation)

    3. (c)

      Communication and resolution projects (discussions between the patient, healthcare practitioner, insurance institution in order to provide explanation of the event, apology and possibly compensation)

    4. (d)

      Disclosure programs

    5. (e)

      Dispute resolution and mediation arrangements (with assistance of a state entity (agency) within the process of negotiations among the parties concerned)

    6. (f)

      Mediation (negotiation facilitated by a third-party neutral mediator)

    7. (g)

      Pretrial notifications (mandatory advance notice of the intention to sue presented to the defendant by plaintiff)

    8. (h)

      Pretrial screenings (informal screenings before medical malpractice litigation by an expert neutral party in order to assess the relative strength of each party’s arguments and to determine whether the merits are to be presented in trial)

    9. (i)

      Safe harbors (defense to medical malpractice claim if shown physicians’ adherence to appropriate professional guidelines).

C. Proposals de lege ferenda

  1. 1.

    Is the issue of alternative procedures to court proceedings in case of medical malpractice a current and debated topic within domestic legislative circles? What is the standpoint of the civil law doctrine and legal theorists? Are judges in favour of limiting judicial proceedings and strengthening the alternative means of dispute resolution?

  2. 2.

    Are there any reform proposals currently at stake? If any, do those attempts aim at traditional (tort litigation in courts) or innovative (alternative dispute resolution mechanisms, administrative systems) regulation of medical liability?

D. Systemic Remarks

  1. 1.

    What is the basis for compensation based on lack of healthcare in case of the existence of waiting lists for medical treatment? Is there a possibility to grant compensation in case of deficits of quality in healthcare? Are there instruments conducive to safeguarding equal distribution of limited resources within the provision of medical services in order to ensure their accessibility? What is the basis for possible compensation in case of defects in medical products?

  2. 2.

    What would be the basis for possible institutional responsibility (of public authorities, public hospital, private hospital) for lack of adequate healthcare? Is there a possibility to grant compensation in case of infringement of the patients’ rights? Would it be possible to grant compensation in order to compensate non-material damages, in case of breach of privacy or dignity of patients?

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Bach-Golecka, D. (2021). Compensation Schemes and Extra-Judicial Solutions in Case of Medical Malpractice. A Commentary on Contemporary Arrangements. In: Bach-Golecka, D. (eds) Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings. Ius Comparatum - Global Studies in Comparative Law, vol 53. Springer, Cham. https://doi.org/10.1007/978-3-030-67000-9_1

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