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Tables of Contents for Cases on Medical Malpractice in a Comparative Perspective
Chapter/Section Title
Page #
Page Count
List of Contributors
xvii
I. Introduction
1
4
Problem Definition
1
1
Methodology
2
1
Case Studies
2
1
Comparative Law
2
1
Economic Analysis
3
1
Framework of the Project
3
1
Collaborators in the Project
3
1
Structure of this Project
4
1
II. Cases and Background
5
52
Case 1
5
2
Facts of the Case
5
1
Allegation of the Plaintiff Which Has not Been Verified
6
1
Reasons for the Decision
6
1
Case 2
7
6
Facts of the Case
7
1
Allegations of the Plaintiff Which Have Not Been Verified
8
1
Allegations of the Hospital and the Responsible Physician Which Have Not Been Verified
9
1
Statement of the Expert Appointed by the Court
9
1
Statement of the Plaintiff During the Interrogation
9
1
Witness Statement of the Plaintiff's Son
9
1
Statement of the Physician Who Had Informed the Patient
9
1
Further Remarks
10
1
Operative Provisions of the Judgement
10
1
Reasons for the Decision
10
3
Case 3
13
9
Facts of the Case
13
2
Allegations of the Plaintiff Which Have Not Been Verified
15
1
Allegations of the Hospital Carrier and the Physician in Charge Which Have Not Been Verified
15
1
Statements of the Experts Appointed by the Court
15
1
Operative Provisions of the Judgement
16
1
Reasons for the Court Decision
16
2
Based on the General Judgement the Following Damages Were Determined (Estimated)
18
1
Case 4
Facts of the Case
19
1
Allegation of the Plaintiff Which Has Not Been Verified
19
1
Allegation of the Defendant (Hospital in Which the Medical Treatment was Performed)
19
1
Statements of the Experts Appointed by the Court
19
1
Other
20
1
Operative Provisions of the Judgement
20
1
Reasons for the Court Decision
20
1
Based on the General Judgement the Following Damages Were Determined (Estimated)
21
1
Case 5
22
12
Facts of the Case
22
1
Allegations of the Plaintiff Which Have Not Been Verified
22
1
Allegations of the Defendant Which Have Not Been Verified
23
1
Statements of the Experts Appointed by the Court
23
1
Additional Remarks
23
1
Operative Provisions of the Judgement
24
1
Reasons for the Court Decision
24
2
Based on the General Judgement the Following Damages Were Determined
26
1
Case 6
Facts of the Case
27
1
Allegations of the Plaintiff Which Have Not Been Verified
28
1
Allegations of the Defendants 1-4 Which Have Not Been Verified
28
1
Statements of the Experts Appointed by the Court
28
1
Operative Provisions of the Judgement
28
1
Reasons for the Court Decision
29
5
Medical Practitioners' Liability in German Law
34
3
Procedural Law
34
1
Appeal to the Arbitration Panel
34
1
Plaintiff
34
1
Annuities
34
1
The Patient's Right to Inspect His Medical Records
34
1
Providing Substance for the Claim/Ascertainment of the Facts at Court and Ascertainment of the Damage
35
1
Facilitation of the Ascertainment of Causation and Loss
35
1
Basis for Claims in Medical Liability Law
35
2
Contractual Liability
35
1
Complete Hospital Admission Contract (if Necessary, with Added Physician Contract)
36
1
Split Hospital Admission Contract
36
1
Physicians Hiring Beds and Nursing Services From the Hospital
36
1
Tort Liability
36
1
Liability Due to Treatment Errors
37
20
General Remarks
37
1
Standard of Due Care
37
1
Typical Treatment Errors
38
2
Wrong Diagnosis
38
1
Wrong Choice of Treatment Method
39
1
Liability for Taking Over the Treatment
39
1
Informed Consent Process for the Selection of Therapy
39
1
Individual Questions
40
3
Distribution of Liability According to the Division of Work
40
1
Vertical Work-Sharing
40
1
Horizontal Work-Sharing
41
1
Liability of the Professional Beginner and Liability for the Professional Beginner
42
1
Liability Arising From Organizational Faults
42
1
Presenting Evidence and Burden of Proof
43
4
The Basics
43
1
Gross Treatment Errors
44
1
Easing of the Burden of Proof Because of Organizational Faults
45
1
Surgery Performed by a Beginner (Physician-in-Training)
45
1
Risks Which can Be Completely Controlled
45
1
Easing of the Burden of Proof Based on the Duty to Establish the Diagnosis and Confirming It
46
1
Easing of the Burden of Proof in Cases of Failure to Document
46
1
Liability Based on an Insufficient Informed Consent Process Concerning Surgery and the Risks Involved
47
3
Compensation as a Legal Consequence
50
2
Pecuniary Damage
50
1
Costs for Healing Treatment
50
1
Loss of Income
50
1
Additional Needs
51
1
Non-Material Damage
51
1
Social Insurance Law
52
2
Compulsory Health Insurance
52
1
Insured Persons
52
1
Benefits of the Health Insurance
52
1
Compulsory Pension Insurance
53
1
Insured Persons
53
1
Benefits of Pension Insurance
53
1
Pension Benefits for Reduced Earning Capacity
53
1
Pension in the Event of Death
54
1
Social Nursing Care Insurance
54
1
Persons Insured
54
1
Benefits of Nursing Care Insurance
54
1
Recourse Possibilities of the Social Security Insurance Providers, § 116 SGB X
54
1
Support for the Insured to Enforce Claims for the Payment of Damages
55
1
List of References
55
2
III. Country Reports
57
210
Austria
57
27
Case 1
57
10
Contractual Liability of the First Defendant in General
57
2
Tort Liability of the Second Defendant in General
59
2
Contractual Duties of Information
61
1
Form of the Information
61
1
Contents and Extent of the Necessary Information
62
2
Basic Information as Minimum Requirement?
64
1
Time of the Information
64
1
Conclusions for the Instant Case
65
1
Damages for Pain and Suffering
65
2
Case 2
67
4
Contractual Duties of Information
67
1
The Formulation of the Risk
67
1
Language Skills of the Patient
68
1
Information about Alternatives of Treatment
68
1
Contractual Liability of the First Defendant
69
1
Violation of the Duty to Inform the Patient
69
1
Intervening Causation in Case of a Predisposition of the Patient
69
1
Tort Liability of the Second Defendant
70
1
Damages for Pain and Suffering
70
1
Case 3
71
4
Tort Liability of the First Defendant
71
1
Contractual Liability of the Second Defendant
72
1
The Contract's Scope of Protection
72
1
Breach of a Duty of Care
72
1
Proof of Causation
73
1
Damages
74
1
Pain and Suffering
74
1
Other Damages
75
1
Case 4
75
3
Contractual Liability of the Defendants
75
1
Prima Facie Evidence or Reversal of Burden of Proof
75
1
Inadequate Documentation of the Treatment
76
1
Conclusions for the Instant Case
77
1
Damages for Pain and Suffering
77
1
Case 5
78
2
Contractual Liability of the Defendants
78
1
The Child's Right of Action
78
1
Burden of Proof for Causation
78
2
Conclusions for the Instant Case
80
1
Damages for Pain and Suffering
80
1
Case 6
80
2
Contractual Liability of the First Defendant
80
1
Tort Liability of the Second Defendant
81
1
Damages for Pain and Suffering
82
1
List of References
82
2
Belgium
84
18
Introduction
84
1
The Different Kinds of Liability
84
7
The Contractual Liability of the Physician/Hospital
84
1
The Treatment Contract Between the Physician and the Patient
85
1
The Diagnosis
85
1
The Obligation to Inform the Patient
86
1
The Treatment
87
1
The After Treatment Care
87
1
Liability for the Negligent Acts of His Medical Team
87
1
Hospital Admission Contract
88
1
The Accommodation
88
1
The Nourishment
88
1
The Medical Staff
88
1
The Infrastructure
88
1
The Tort Liability of the Physician/Hospital
89
1
Liability of the Physician for His Medical Acts (Art. 1382 CC) and for Those of His Own Staff (Art. 1384, 3 CC)
89
1
Liability of the Hospital for Its Own Acts (Art. 1382 CC) and Those of Its Medical Staff (Art. 1384, 3 CC)
90
1
Criminal Liability
90
1
The Burden of Proof
91
1
The Fault of the Physician/Hospital
91
1
The Damage
91
1
Causal Connection
91
1
Is the Burden of Proof Shared Between the Patient and the Physician in Belgium?
92
1
The Compensation of the Damage Sustained
92
1
Case 1: The Improper Informed Consent of the Patient
93
1
The Facts and Problems
93
1
Belgian Law
93
1
Case 2: Improper Informed Consent of the Patient
94
1
The Facts and Problems
94
1
Belgian Law
94
1
Case 3: The Post-Treatment Obligation
95
2
The Facts and Problems
95
1
Belgian Law
95
1
Moral and Material Damages
96
1
General Rule
96
1
The Present Case
96
1
Aesthetical Damages
96
1
Loss of Enjoyment of Life
97
1
Compensation for the Loss of a Chance of a Better Medical Result
97
1
The Parents
97
1
Case 4: Deviation From the Standard of the Prudent and Competent Physician
97
1
The Facts and Problems
97
1
Belgian Law
97
1
Case 5: Deviation From the Standard of the Prudent and Competent Physician/Deviation From the Standard of the Careful Hospital
98
1
The Facts and Problems
98
1
Belgian Law
98
1
Case 6: Deviation From the Standard of the Competent Physician and the Effcient Hospital
99
1
The Facts and Problems
99
1
Belgian Law
99
1
List of References
100
2
France
102
21
Introduction
102
2
Structure of the French Law of Torts/Consequences in the Field of Medical Liability
102
1
General Principles Governing Liability for Medical Activities
103
1
Civil Liability
103
1
Administrative Liability
103
1
Case 1
104
6
Private Law
105
1
Fault
105
1
Causation
106
2
Who is Liable?
108
1
Public Law/Prospects of Evolution in Private Law
108
2
Case 2
110
2
Case 3
112
4
Fault
114
1
Causation
114
2
Case 4
116
1
Case 5
117
2
Case 6
119
1
Appendix: Indications Concerning the Quantum of Damages in Cases 3 and 5
120
2
List of References
122
1
Germany
123
23
Case 1
123
4
Case 2
127
3
Case 3
130
3
Case 4
133
3
Case 5
136
3
Case 6
139
2
Summary and Conclusions
141
4
List of References
145
1
The Netherlands
146
26
Introduction
146
1
The New Dutch Medical Services Act in a Nutshell
147
2
Minors
149
1
Minors Aged 16 and Over
149
1
Minors Aged 12 to 16
149
1
Medical Liability and the Medical Services Act
150
1
Information Errors
151
2
Scope of the Duty to Provide Information
151
1
Who Should Provide the Information and When?
152
1
Has the Patient Understood the Information?
153
1
Treatment Errors
153
2
Defective Devices, Equipement etc
155
1
Causation
156
3
Sine qua non Connection: The Lost Chance Theory
156
1
Imputation on the Basis of Reasonableness
157
1
Causal Connection in the Event of Information Errors
158
1
Damage
159
2
Division of Burden of Proof
161
1
Burden of Proof Lies with the Patient, But
161
1
Other Methods of Lightening the Burden of Proof
161
1
Who is Liable in the Event of a medical Error?
162
2
General Provisions: Book 6 Civil Code
162
1
Central Liability: Medical Services Act
163
1
Statute of Limitations
164
1
Insurability
165
1
Discussion of the Cases
165
6
Case 1
165
1
Case 2
166
1
Case 3
167
1
Case 4
168
1
Case 5
169
1
Case 6
170
1
List of References
171
1
Portugal
172
16
General Remarks
172
1
Conditions of Responsibility
172
6
Legitimacy
172
1
Contractual/Extra-Contractual Liability
173
1
Wrongfulness
174
2
Fault
176
1
Causation
177
1
Compensation
178
1
Non-Pecuniary Loss
178
1
Pecuniary Loss
179
1
Social Security Law
179
2
National Health Service
179
1
Social Security Law
180
1
Insurance Law
180
1
Professional Insurance
180
1
Private Health Insurance
180
1
Cases
181
5
Case 1
181
2
Case 2
183
1
Case 3
183
2
Case 4
185
1
Case 5
185
1
Case 6
186
1
List of References
186
2
Sweden
188
13
General Description of the Swedish Health Care Legislation
188
1
Patients Rights
188
3
Introduction
188
1
The Right to Become a Patient
189
1
Informed Consent Etc
189
1
The Right to Good and Competent Care
190
1
The Right to Choose Between Alternatives
190
1
The Right to Compensation for Damage
191
6
Tort Liability
191
1
General Remarks
191
1
Informed Consent
191
2
Erroneous Diagnosis
193
1
Other Forms of Malpractice
193
1
Patient Insurance
194
1
General Remarks
194
1
Right to Compensation
195
1
The Main Limits to and Exceptions From the Right to Compensation
196
1
Side-Effects of Drugs
196
1
Underlying Illness
196
1
Necessary Risk-Taking
196
1
Time Limits
196
1
Calculating the Compensation
197
1
Comments on the Cases
197
3
Introduction
197
1
Case 1
198
1
Case 2
198
1
Case 3
199
1
Case 4
199
1
Case 5
199
1
Case 6
200
1
List of References
200
1
Switzerland
201
25
Preliminary Remarks
201
1
Liability Due to Lack of Adequate Information (Cases 1 and 2)
201
12
The Various Objectives of Information
201
2
Lack of Adequate Information
203
1
General Remarks
203
2
Information on Intended Measures in Particular
205
1
Contents and Extent in General
205
1
Information on Possible Risks in Particular
206
2
Limits of Information on the Intended Measures
208
1
Hypothetical Consent of the Patient
209
1
The Form of Information
210
1
The Person in Charge of Information and the Time of Providing Information
210
1
Securing Evidence on Information
210
2
Case 1 and 2 from a Swiss Perspective
212
1
Proof of a Causal Violation of a Duty of Care: Burden of Proof, Facilitation of Proof and Securing Proof (Cases 3-6)
213
7
Medical Malpractice in a Narrower Sense
213
1
Causal Violations of a Duty of Care, Their Consequences, and Burden of Proof
214
1
Violation of a Duty of Care as a General Requirement of Liability
214
1
Adequate Causation of the Violation
214
1
Burden of Proof
215
1
Burden of Proving Medical Malpractice
215
1
Burden of Proving Adequate Causation of Medical Malpractice
216
1
Facilitation of Proof
216
1
Proof of Probabilities
216
1
Additional Presumption of Malpractice as a Presumption of Fact?
216
1
Procedural Duty of the Opposing Party to Cooperate
217
1
Duty to Secure Evidence
217
1
Securing Evidence of Malpractice
218
1
Legal Consequences of Inadequately Securing Evidence
218
1
Cases 3-6 in the Light of Recent Cases Before the Swiss Bundesgericht
219
1
The Relationship Between practitioner and Hospital (Case 5)
220
1
Liability of Private Hospitals
220
4
Liability of Public Hospitals
220
1
Types of Claims
220
1
Public law Liability for Medical Malpractice
221
2
The Upcoming Revision of Swiss Tort Law
223
1
Case 5 From the Perspective of Current and Upcoming Swiss Law
223
1
List of References
224
2
United Kingdom: England
226
41
Introduction
226
1
Cases 1 and 2 - General
226
5
Case 3
231
2
Case 4
233
2
Case 5
235
3
Case 6
238
1
Appendix 1. English Law Compared with the Overview of German Law in Relation to Matters Not Covered Above
239
5
Section 1 (a). Arbitration Panel
239
1
Section 1 (b)
240
1
Section 1 (c)
240
1
Section 1 (d)
240
1
Section 1 (e)
241
1
Section 2 (a)
241
1
Section 2 (b). Tort Liability
242
1
Section 3. Fault in General
243
1
The Individual Doctor
243
1
The Hospital
243
1
Section 5. Compensation
243
1
How Are Damages Paid?
243
1
Assessment of Damages
244
1
Appendix 2
244
22
List of References
266
1
IV. Comparative Analysis
267
44
Introduction
267
1
Cases: Comparative Summary
268
43
Cases 1 and 2: Duty to Disclose
268
12
Summary of the Contents of the Cases
268
1
Contents of the Duty to Inform
269
3
Burdent of Proof of Disclosure
272
1
Informed Consent Forms
272
1
The Relevance of the Language
273
1
Timeliness of Information
274
1
Consequences of a Lack of Information
274
2
Causation
276
2
Results of Case 1
278
1
Case 2
279
1
Case 3-6: Professional Fault
280
10
A Brief Summary of the Contents of the Cases
280
2
Norm for Professional Behaviour
282
1
Financial Limits as Excuse?
283
1
Burden of Proof of a Violation
284
1
Lack of Documentation
285
1
Causation
286
1
Results of the Cases
287
1
Case 3
288
1
Case 4
288
1
Case 5
289
1
Case 6
289
1
Comparative Results
290
4
Statutes and Case Law
290
1
Disclosure of Information
290
1
Standard of Care and Burden of Proof
291
1
Causation
292
1
Channelling of Liability?
292
1
Non-Pecuniary Loss
293
1
Social Insurance Carriers
293
1
Germany: Patient Protection on Top!
293
1
A Few Economic Observations
294
7
Introduction
294
1
Effects of Increased Liability
294
1
Liability as an Incentive System
294
1
Negligence Versus Strict Liability
295
1
The Coase Theorem
296
3
Insurance
299
1
Curing ``Moral Hazard''
299
1
Towards an Insurance Crisis?
299
1
Self Insurance
300
1
Alternatives?
301
5
First-Party Patient Insurance
301
2
Compensation Fund
303
1
Examples: Belgium, Vienna, Sweden
304
1
Social Security or Tort Law?
305
1
Harmonization
306
3
Economic Reasons for Harmonization?
306
2
Is Harmonization Possible?
308
1
List of References
309
2
V. Deficiency of Regulation and Approach to Solutions: Conclusions from the Comparative Research
311
14
Deficiency of Regulation
311
1
Deficiences Inherent in the System
312
1
Deficiences by Comparative Law
313
1
Deficiency by Legal Policy
314
2
Considerations Regarding Future Developments
316
6
List of References
322
3
Index
325