Abstract
Given the growing amount of medical litigation heard by courts, the 2002 Kouchner law in France has created the Office National d’Indemnisation des Accidents Médicaux (ONIAM), whose main aim is to encourage out-of-court settlements when a conflict between a physician and the victim of a medical accident occurs. More than 10 years after the implementation of this law, the statistics analysing its effectiveness are contradictory, which raises the question of the potential negative effects of the ONIAM on the compensation system. In order to address this question, the article analyses the impact of the ONIAM on the nature of settlement negotiations between the physician and the victim. Using a dynamic game within incomplete information, we develop a comparative analysis of two types of compensation systems in case of medical accidents: socialised financing granted by the ONIAM and private financing provided by the physician. We show that the ONIAM could encourage out-of-court settlements provided that the hypothesis of judicial error is relevant. On the contrary, in the case of a low probability of judicial errors, the ONIAM could be effective only for severe medical accidents.
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Notes
As showed by Helmlinger and Martin [16], “several resounding trials as for instance that of the infected blood or that of the growth hormone have largely popularised the idea that medicine is also exposed to legal investigation” (translation from French).
The 2002-303 law from 4 March 2002 relative to the patients’ rights and to the quality of the health system.
ONIAM was created in the context of the Kouchner law in 2002 and can be considered as a substitute for the insurers. It intervenes when a medical accident occurs if the responsibility of the physician is not recognised, i.e. lack of medical malpractice liability or if there is no proposal for out-of-court settlement by the insurer. The creation of ONIAM is specifically French, but other European countries (mainly Germany, the UK, Denmark, Sweden and Italy) have developed a similar approach trying to encourage out-of-court settlements when medical accidents occur. As mentioned by the Senate Report in November 2000 [25], “the analysis of the systems of medical accident compensation puts forward that except Italy, all the analysed countries have developed specific procedures allowing the victims of medical accidents to obtain a compensation without going to court” (translation from French). This report also describes the specific procedures implemented in each country.
Inspection Générale des Affaires Sociales (2007): “contrary to what was feared, there has been no important rise in the number of complaints as a consequence of the introduction of an obligation to inform the patient or of the creation of CRCI (Commission Régionale de Conciliation et d’Indemnisation)” (translation from French).
Report of the Office National d'Indemnisations des accidents médicaux (2010): “the number of medical litigations handled by the legal system has remained stable, i.e. around 7,000 new cases each year throughout all jurisdictions” (translation from French).
The risk with ONIAM is that some conflicts may not be brought to court where the judge could award a better compensation to the victim. Another risk is that in the absence of court judgments, we may lack references relative to similar conflicts [29].
We will later see that the presence of ONIAM implies that the victim is always compensated if a medical accident is proved, whether the physician is negligent or not.
The guilty agent recognises his/her negligence, whereas the not guilty agent declares him/herself not negligent [5].
We thank the referee for suggesting this description.
See Fig. 1 for a synthetic description of the different ways for a victim of medical accidents to obtain compensation.
For instance, we can mention iatrogenic infections.
The request is admissible if the medical procedure generating the accident took place after September 2001 and if it generated damage that is superior to a threshold fixed by the law.
The expert investigation is free of charge for the victim.
We could draw a parallel with the 1985 Badinter law for traffic accidents within a system of strict liability. This law creates an obligation for the insurers to make an offer to the victims. In this type of conflict, only the most severe injuries or the most complex cases go to court.
We can thus conclude that the ONIAM has two main objectives. First, it generates a victim compensation process when the physician is not negligent. Second, it represents a substitute to the negligent physician if he/she does not make an offer.
Rochaix [26] provides a survey of the literature and presents the various strategic behaviours that can be analysed in health economics. The articles of Béjean and Gadreau [6] and Béjean et al. [7] describe the specific relationships that could be identified among the different regulatory authorities (health insurance system, government), insurers (private and public) and thealth care providers (hospitals, physicians, pharmacists, etc.).
The economic analysis of the legal system draws a distinction between two main categories of models [14]: the screening models [5] and signal models [13, 28]. It has grown in popularity as a result of the implementation of alternative dispute resolution. This field of research aims to study the effectiveness of legal rules and to provide innovative measures allowing improving the current juridical system.
Contrary to the P’ng [24] model, we do not take the existence of the nuisance suits explicitly into consideration, supposing that the victim’s expected gain from the legal proceedings could be inferior to his/her cost.
According to the Observatoire des Risque Médicaux [23] for the period 2006–2009, the surgical disciplines represented 59.4 % of the compensated cases, which corresponds to 280 million euros. Anaesthesia, resuscitation, emergency and regulation procedures represent 6.4 % of the compensated cases, which corresponds to 41 million euros.
We can mention for instance the important differences between the premiums paid by a general practitioner and by an obstetrician-gynecologist.
According to the Observatoire des Risques Médicaux [23], in private health institutions, it is the liability of the practitioners that is largely questioned (58 % of cases for all the private institutions), whereas in public health institutions, it is the institution itself (more than 90 % of cases).
An interesting extension of our model could be to consider a different framework supposing that the proposal is made either by the insurer or by ONIAM according to whether the case is initially considered as a negligent or not negligent act. The victim’s incentives to accept or refuse the offer could thus be different according to the origin of the offer.
The Kouchner law implementing the ONIAM insists on the role of the physician in the physician-patient relationship and imposes an obligation for the physician to inform the patient about his/her medical file.
The game is identical regardless of the presence or not of the ONIAM. The differences concern the players’ payoffs.
When there is an insurance, the proposal will be made by the insurer on behalf of the physician. In this case, the insurance can cover the compensation if the victim accepts the proposal. The type of this proposal depends on the nature of the contract between the insurer and the physician. It is thus particularly difficult given the complexity and the diversity of these contracts to be able to capture a representative insurer-physician relationship in order to explicitly formalise it in our model. Moreover, if we consider that it is the insurer who makes a proposal to the victim and pays it, the physician–patient relationship, which we aim at focussing on in our article, will be biased as it will be highly conditioned by the nature of the contract between the insurer and the physician.
We will see further on that ONIAM has the possibility to sanction the physician more severely when he/she did not make any proposal as this behaviour is inconsistent with ONIAM’s objective of developing a settlement agreement.
The victim bears the costs of the trial when the physician is acquitted regardless of the physician’s decision (i.e. to propose a settlement or not). This hypothesis is justified by the fact that the victim is the first actor to take legal proceedings.
A close approach developing a bargaining model with asymmetrical information and supposing an initial separating equilibrium is proposed by Baker and Mezzetti [3]. We can thus identify a difference compared with the results of P’ng [24] who, according to the parameters of its model, has identified only pooling equilibriums. In our approach, the existence of a separating equilibrium used as a benchmark in order to compare the physician’s incentives to make a proposal according to the presence or not of the ONIAM does not exclude the existence of pooling equilibriums.
We notice that the acceptance by the victim can also be explained by the existence of a type 2 judicial error supposing that the responsible physician is acquitted (\(\pi_{N} < 1\)). Thus, the higher the probability of this erroris (\(\pi_{N}\) goes down), the higher the victim’s incentive to accept the physician proposal. Indeed, faced with the risk of undergoing a judge’s wrongful decision, which diminishes compensation by acquitting the responsible physician, the victim prefers to accept the physician’s proposal.
Indeed, as shown by the literature on public aid [1], [4], [15], [17]], [27], the persons subject to legal proceedings are encouraged to go to trial by refusing the proposal from the accused as their trial costs are paid by the insurer but also because the assistance received could represent a credible threat.
ONIAM has created a reference system that gives the guidelines applied for the compensation of the victim according to the type of damage suffered (http://www.oniam.fr/infos-et-documents/referentiels-d-indemnisation/).
This case implies the same type of separating equilibrium according to the presence/lack of ONIAM. This does not allow refining our comparative analysis relative to the two other configurations and consequently will not be developed here.
This moral hazard problem can be identified on the segment B′B of the above diagram.
Contrary to the separating equilibrium, the rejection of the proposal by the victim is a strategy that is compatible with the physician’s behaviour in the case of a pooling equilibrium. Nevertheless, our comparative analysis is concerned with the physician’s behaviour whose benchmark is the separating equilibrium. Thus, even in the case of pooling equilibriums, we will retain only the acceptance strategies from the victim as solution.
Condition A < A′ implies B < B′. It is thus impossible to have the case A < A′ and B > B′.
Indeed, the lack of judicial error signifies that the responsible physician has to be convicted (\(\pi_{N} = 1\)). In this context, the condition B > B′ is no longer satisfied.
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Acknowledgments
The authors thank two anonymous referees as well as David Crainich, Louis Eeckhoudt and the participants to the 34th JESF, 30th JMA and 2013 AFSE Meeting for their constructive suggestions and comments.
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Ancelot, L., Oros, C. Physician–patient relationship and medical accident victim compensation: some insights into the French regulatory system. Eur J Health Econ 16, 529–542 (2015). https://doi.org/10.1007/s10198-014-0606-4
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DOI: https://doi.org/10.1007/s10198-014-0606-4