legal aspects of malpraxis. a comparative view

Revista Romana de Bioetica, Vol. 13, Nr.I, January - March 2015
LEGAL ASPECTS OF MALPRAXIS.
A COMPARATIVE VIEW
Crina Radulescu*, Diana Bulgaru-Iliescu**
Abstract
When examining the laws outside Romania, we often learn a lot about our own legal and social
system. This comparative view seeks to illuminate the medical malpractice laws in the United
States, as ..veil as in France and Germany. We will briefly describe these legal provisions and
then make some observations about the American, French and German legal systems that affect
the medical malpractice laws. We organize our comments around several key themes: (1) access
to justice; (2) out-of-court, no-fault systems for medical malpractice, as alternatives to courts;
and (3) similarities and differences between the systems.
Keywords: malpractice, liability, mediation, damages.
Corresponding author: Diana Bulgaru-Iliescu - bulgarudianargyahoo.com
* Centre for Ethics and Health Policy, University of Medicine and Pharmacy "Or.T.Popa", Iasi ; Faculty of
Bucharest, Romania
**University of Medicine and Pharmacy, "Or T. Papa" Iasi, Romania
Public Administration,
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amounts of compensation sought over
recent years. In the US, the most
striking example, "claims have
increased nearly IO% annually since
2000, and total damages awarded in
2004 reached $28.7 billion" (2). This
report suggests that the above trends
produce three main adverse effects in a
number of countries. The first of these
is a reduction in the market offer of
health
compensation
insurance,
including restrictions on cover and
withdrawals from the sector. (2)
The second effect is a reduction in
some instances in the numbers of
practitioners willing to work in
specialized disciplines for which it is
difficult to find insurance cover, and/or
in regard to which premiums have
risen particularly steeply. For example,
premiums for disciplines such as
obstetrics and gynaecology have more
than doubled since 2000 in some US
states. Also, a 2004 survey by the
Society of Thoracic Surgeons in the
US showed that more than 30% of
cardiothoracic surgeons questioned had
relocated, closed their practices or
stopped providing high-risk services,
mainly because of increased liability
costs. (2)
Another effect related to this is the
development of defensive medicine to
reduce the risk of litigation. This leads
doctors to call for more tests than
necessary, prescribe more drugs, refer
to specialists when not particularly
useful, or even recommend invasive
procedures, in order to confirm
diagnoses. These measures incur costs
and may even involve risks for
patients. According to a survey by
Harris Interactive in 2004, 76% of
doctors in the US stated that their
Introduction
Medical malpractice is not just an
American issue, or European, but
comparative to the U.S. system, the
European medical malpractice systems
usually attract far less controversy, and
are far less expensive. Medicine is
supposed to cure; when instead it kills
or injures, front-page headlines soon
convey the dismal tidings. (I) When
medicine does its daily job correctly,
there is no news to report unless a
spectacular-and preferably simple to
explain-breakthrough is involved.
Nowadays, hospitals, doctors,
health claims insurers and politicians
in many of the world's wealthiest
countries are convinced that patients
and their lawyers are seized by the
compulsion that "someone's got to be
summonsed," (1) whenever treatment
goes wrong.
The topic is hot and is all of
massive payouts for trivial claims,
huge legal bills, escalating insurance
premiums, and the withdrawal of
health practitioners and insurers from
high-risk specialties such as obstetrics
and neurosurgery. This in its turn is
feeding the on-going calls for legal
reforms that can limit the frequency
and costs of litigation and keep
premiums within bounds. In different
states, there have been high-profile
campaigns on this issue in the US, for
instance, and some states have already
legislated in this area.
One report by the OECD Insurance
and Private Pensions Committee,
Medical Malpractice: Prevention,
Insurance and Coverage Options, states
that claims for clinical mistakes have
increased in both the number and
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concem about possible malpractice
litigation had impaired their ability to
provide quality care to patients and had
caused them to practice defensive
medicine. Going further, a report
issued by the US department of Health
and Human Services (HHS) in 2003,
showed that money spent on defensive
medicine is money not spent on
improving the quality of care. (3)
of violent death: this was the precursor
to requiring expert testimony from a
member of the profession in medical
negligence claims, to establish the
standard of care.
In the United States, medical
malpractice suits first appeared with
regularity in the 18005. (6) However,
before the 19605, legal claims for
medical malpractice were rare, and had
little impact on the practice of
medicine (7). The frequency of
medical malpractice claims has
increased, starting with 1960s; and
today, lawsuits filed by aggrieved
patients alleging malpractice by a
physician are relatively common in the
United States. One survey of specialty
arthroplasty surgeons reported that
more than 70% of respondents had
been sued at least once for medical
malpractice during their career (8).
Historical path
Writings on medical responsibility
can be traced back to 2030 BC when
the Code of Hammurabi provided that
"If the doctor has treated a gentlemen
with a lancet of bronze and has caused
the gentleman to die, or has opened an
abscess of the eye for a gentleman with
a bronze lancet, and has caused the
loss of the gentleman's eye, one shall
cut offhis hands." (4)
Under Roman law, medical
malpractice was a recognized wrong.
Around 1200 AD, Roman law was
expanded and introduced to continental
Europe. After the Norman conquest of
1066, English common law was
developed, and during the reign of
Richard Coeur de Lion at the close of
the 12th century, records were kept in
the Court of Common Law and the
Plea Rolls.
These records provide an unbroken
line of medical malpractice decisions,
all the way to modern times. One early
medical malpractice case from
England, for example, held that both a
servant and his master could sue for
damages against a doctor who had
treated the servant and made him more
ill by employing "unwholesome
medicine." (5). In 1532, during the
reign of Charles V, a law was passed
that required the opinion of medical
men to be taken formally in every case
United States of America
Based on the English common law,
the medical malpractice law in the
United States was developed by rulings
in various state courts. The legal
system is designed to encourage
extensive discovery and negotiations
between opposite parties with the goal
of solving the dispute without going to
jury trial, still medical malpractice
lawsuits are relatively common in the
United States. (7) The injured patient
must show that the physician acted
negligently in rendering care, and that
such negligence resulted in injury. To
do so, four legal elements must be
proven: (a) a professional duty owed to
the patient; (b) breach of such duty; (c)
injury caused by the breach; and (d)
resulting damages. Money damages, if
awarded, typically take into account
both actual economic loss and
noneconomic loss, such as pain and
suffering. (9)
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said to have jurisdiction over medical
malpractice cases, which is the legal
authority to hear and decide the case.
Legal rules guide venue and
jurisdiction in each state. Some towns
may be located in two judicial districts,
thereby giving the aggrieved patient an
option to file suit in more than one trial
court. If the malpractice claim involves
the federal government acting through
a federally funded clinic or a Veteran's
Administration facility, then the action
is filed in a federal district court. Each
state has at least one such federal
district court. (8) Federal courts may
also be appropriate for filing
malpractice claims where a complete
diversity of state citizenship exists, i.e.,
if the parties to the litigation are from
different states, or if a federal question
is invoked, such as violation of a
fundamental constitutional right during
the allegedly negligent conduct.
In the United States, the right to a
jury trial is regarded as a fundamental
constitutional right. A jury trial is a
legal proceeding where a group of
individuals chosen from the public is
asked to consider the evidence
presented during the case and make a
decision. The choice of jurors is guided
by court rules and with the
participation of lawyers from both
sides. Demographic information about
the jurors is known to both parties,
each of whom can usually strike a
limited number of jurors to assure
impartiality of the jury panel. In
contrast to a jury trial, a bench trial is
one in which a judge or a panel of
judges makes the ultimate decision. In
the United States, a physician can
expect a jury trial in nearly all cases of
medical malpractice, assuming the case
is not disposed of prior to trial. (A jury
trial is not the same thing as a grand
jury; the latter is used for criminal
In the United States, medical
malpractice law is under the authority
of the individual states; the framework
and rules that govern it have been
established
through
decisions
of
lawsuits filed in state courts. Thus,
state
law
governing
medical
malpractice can vary across different
jurisdictions in the United States,
although the principles are similar. (9)
Litigation has at least four distinctive
procedural features that drive up
malpractice costs. The first is jury
trials, which can veer out of control
and in any case introduce significant
uncertainty. The second is the
contingency-fee system, which allows
well-heeled lawyers to self-finance
litigation. The third is the rule that
makes each side bears its own costs.
This induces riskier lawsuits than are
undertaken in most other countries,
such as Canada, and most of Europe,
where the loser pays the legal costs of
the winner. (8) The fourth is extensive
pretrial discovery outside the direct
supervision of judges, which occurs far
more readily here than elsewhere.
Although the names given to the
different tribunals can vary, the
structure and hierarchy of the courts is
similar among the states. All states in
the United States have trial courts
where civil disputes are filed and
litigated; and there is usually a system
of appeals courts, with final judicial
authority resting in the state supreme
court. The place where the case is filed
is guided by the residence of the
parties involved and the location of the
alleged misconduct; this place is also
referred to as venue. (9) If a case is
filed in the wrong court, it can be
dismissed for lack of venue.
Lawsuits
alleging
medical
malpractice are generally filed in a
state trial court. Such trial courts are
94
medical malpractice liability rules,
regardless of the actors involvedpublic or private. (11) This Law
defines patients' rights and sets forth
general principles regarding the
responsibility of health professionals
and health institutions, which are now
in the Code of Public Health (Code de
la Sante Publique).
However, despite the unification of
medical malpractice rules, disputes still
have
to
be
brought
before
administrative
or
civil
courts,
according to whether the medical
malpractice has occurred in a public
hospital or in a private practice or
institution. It should also be noted that
victims may initiate prosecution before
criminal courts against any health
professional if it appears that he or she
committed a criminal offense. And
physicians may be brought before
disciplinary courts in case of violation
of the Code of Ethics (Code de
deontologie medicale).
The Patients' Rights Law of March
4, 2002, not only provides for new
liability rules but also organizes the
compensation of injuries tImtcannot be
attributed to any misconduct. (11)
When the injury results from acts
of prevention, diagnosis, or treatment,
and when such injury is abnormal with
respect to the patient's previous health
and its likely evolution, the victim's
claim may be brought before the
National Fund for Compensation of
Medical Accidents (Office National
d'Indemnisation
des
Accidents
Medicaux [ONIAM or the "Public
Guarantee Fund")]). (12). Its mission
was to compensate certain patient
injuries when no party is legally liable,
as well as to accelerate and guarantee
payment when liability exists.
In addition, the ONIAM is in
charge of compensating tile victims
indictments and does not apply to
medical malpractice cases.) (9)
Medical malpractice lawsuits are
time
and
resource-consuming
endeavors, and emotionally charged
experiences. Many lawsuits settle out
of court, on terms agreed upon by both
parties, with a payment of money by
the physician's insurance company.
Most insurance policies allow the
physician to have input into the
settlement decision, grvmg the
physician the authority to decide
whether to settle, or proceed with
litigating the claim Some professional
liability policies, however, allow the
insurance carrier to settle a claim
without consent of the policyholder, or
even over the policyholder's objection,
and may contain additional restrictions
related to settlement of claims.
FRANCE
The French law of medical
malpractice must be understood within
the context of a French health care
system that is characterized by the
division among the public sector,
primarily public hospitals, and private
practitioners or institutions, which may
be either non-profit organizations or
for profit establishments that depend
on their fees for funding. In principle,
patients are free to choose their doctor,
but this freedom of choice has been
diminished by Law 2004-810 of
August 13, 2004, for the "coordination
of care," which requires each insured
individual to choose a "primary care
physician" ("medecin traitant"). (10)
Law 2002-303 of March 4, 2002,
relative aux droits des malades et it la
qualite du systeme de sante (the
Patients' Rights Law) has unified
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who cannot get compensated by the
health professional or his/her insurer,
even if liability rules are applicable.
The
compensation
schemes
that
complement civil liability in such cases
are said to be based on the principle of
"solidarite
nationale''
(national
solidarity): the term reflects the idea
that the whole community supports the
cost of such risks. Finally, the Patients'
Rights Law of March 4,2002 regulates
the settlement of disputes between
patients and health professionals.
In addition to the classic case
(11) in its provisions relaxed the rule
that requires information on frequent
risks or on serious but normally
predictable risks.
Thus the disclosed information
relates to the various investigations,
treatments, or preventive measures that
are proposed, their usefulness, their
degree of urgency, their consequences,
the frequent or serious risks that could
be reasonably anticipated, the likely
consequences of refusal, and other
possible solutions.
where
the
physician
commits
negligence in performing his mission,
the practitioner may also be liable for
breach of his or her duty of disclosure.
Indeed, the physician must disclose to
his or her patient the risks of treatment
or operation and obtain his or her well
informed consent. This duty was
defined by case law before being
reaffirmed by the Patients' Rights Law
of March 4, 2002 in Article L. 1111-2
CSP. (II) The Cour de cassation states
that such a duty of disclosure "is
rooted in the requirement to respect the
constitutional principle of safeguarding
the human person." (13) The reference
to the principle of human dignity
explains that the decision condemning
the practitioner who has failed to
deliver complete information is based
on Article 1382 of the Civil Code,
which means that such responsibility is
now a matter of tort law.
Previously, the doctor was not
obliged to inform the patient of
exceptional risks. However, the Cour
de cassation ruled that the physician
must inform the patient of all the
"inconveniences that may arise" and all
risks, even exceptional ones. Echoing
civil courts, administrative courts
adopted a similar position. The
Patient's Rights Law of March 4, 2002
The practitioner also has a duty to
advice for or against such treatment or
operation and must make the patient
aware of the consequences of his or her
possible refusal or consent. However,
there are exceptions to the duty of
informing the patient. If the patient's
psychological condition does not allow
all understanding of the medical advice
or the consequences of his or her
decision to accept or refuse the
treatment or operation, the physician
must keep the information to himself
(13) and reserve the truth for the
family. These limits to informing the
patient must be based on legitimate
reasons and on the interest of the
patient, which must be "assessed
according to the nature of the
pathology, its foreseeable evolution,
and the personality of the patient." (13)
In 1997, the Cour de cassation
ruled that the burden of proving the
performance of the duty of disclosure
rests on the doctor. The Patients'
Rights Law of March 4, 2002, has
confirmed this solution. (13) Since
performance of the duty is a fact, proof
can be established by all means.
Therefore, the doctor (especially
surgeons)
should
pre-constitute
evidence of the fulfilment of his or her
duty to inform by preparing a
96
procedure to the benefit of the victims,
in order to promote simple and quick
compensation. Today, the victims have
two options: they can bring their claim
before a conciliation commission, or
they can file a lawsuit against the
health professional. (16)
The Patients' Rights Law of March
4, 2002 and the Law of December 30,
2002 (16) provide for regional
commissions of conciliation and
compensation for medical accidents
(tlCommission
Regionale
de
Conciliation et d'Indemnisation des
accidents
medicaux,
affections
iatrogenes et infections nosocomiales"
Regional
Commissions
for
Conciliation and Compensation for
Medical
Accidents,
Iatrogenic
Diseases, and Nosocomial Infections
(CRCI
or
"Conciliation
Commissions") in each region. This
new organization aims to provide new
ways to solve disputes through
amicable means and to help the victims
obtain prompt compensation. CRCIs
were created by the Decree of May 3,
2002 (17) and are meant to be an
alternative to courts. CRCIs are
chaired by a magistrate and composed
of twenty persons, divided into six
major
categories
of
members
representing
patients,
health
professionals, hospital practitioners,
health institutions and facilities,
ONIAM, and insurers.
The mission of CRCIs is to
promote, through conciliation, the
resolution of disputes ansmg in
connection with a medical treatment
and to solve disputes in order to
facilitate compensation for the victims
of medical accidents who suffer from
serious injuries.
As a conciliator, the CRCI seeks to
reach a conciliation agreement
between the victim and the health
document containing the information
provided in the clearest possible
manner that should be signed by the
patient.
Until very recently, the Cour de
cassation rejected compensation for
moral distress resulting from the fact
that the patient had not obtained the
relevant information. However, the
Cour de cassation has overruled its
previous decisions on the subject. (13)
On June 3, 2010, the court ruled that a
patient who did not receive the
complete and necessary information
suffered a moral distress for which the
patient should be compensated.
Since the Patients' Rights Law of
March 4, 2002, all health professionals
and health institutions are under the
obligation to buy insurance against
their own liability, (13) except for
public institutions, which are their OViIl
insurers. (14) In the case where the
liable health professional is not
covered (e.g., coverage elapsed or
insurance limits are reached), or if the
insurer's offer is insufficient, the victim
can ask for compensation from the
ONIAM. (15) It should be emphasized
that compensation through public
welfare (tlsolidarite nationale") is
subsidiary to compensation based on
liability rules, which means that the
ONIAM shall only compensate
medical accidents when no health
professional or institution may be held
liable. However, the Cour de cassation
has recently decided that the two
systems shall complement each other
when full compensation cannot be
granted through liability. On March 11,
2010, the Cour de cassation ruled that
compensation for loss of chance could
be complemented by the ONIAM for
the rest of the damage.
The Patients' Rights Law of March
4, 2002 has provided for a new
97