Understanding Medical Liability

Abstract

Medical liability is liability for damage inflicted to a patient by a health service provider. In comparison to criminal responsibility of physicians, civil law liability of health service providers (medical liability) is more important because of the number of cases and financial impact of damages on the health-care systems throughout the world. Medical liability attracts attention of both physicians and lawyers because of the amount of damages paid to patients, not only by health service providers but also by insurance companies. A health service provider will be held liable only if conditions of civil law liability are met. This is the consequence of the fact that, in most jurisdictions in the world, medical liability is not a special form of liability. A health service provider will be liable under same conditions as any other tortfeasor. Damage inflicted to the patient is the condition of liability which triggers liability, but it is not sufficient to produce liability. Medical liability will arise only if there is causal connection between the act or omission of a health service provider on one side and damage inflicted to a patient on the other. The act or omission of the health service provider must be wrongful, meaning contrary to either rules of medical science or statutory provisions of law (such as provisions on the written form of the patient’s consent, if such provision exists in the particular jurisdiction). As a matter of principle, medical liability is based on fault by a health service provider. In exceptional cases, strict liability rules may be applicable. Apart from “standard” medical liability, there are other ways to compensate for damage inflicted to the patient (e.g., no-fault compensation).