Medical Negligence

Convenor: Ewoud Hondius, Utrecht
The focus of this study is the legal response to death or personal injury flowing from improper treatment by health-care professionals, or more generally arising in the course of treatment (e.g. through contracting a disease while in hospital). While the core is civil liability, typically either through contract or tort, attention has also been given to compensation systems outside private law. The legal changes are being set against changes in the institutional background (the role of the state, the availability and incidence of insurance, the professionalisation of medical practitioners). The project group has noted the way the greater expectations of success in medical treatment have had an impact on the debates on aspects of liability of medical practitioners, both in generating new problems and in raising standards of expected care.

Outcome

Medical cases typically fall within the law contract in the 19th century, though in France, Germany and Spain criminal law is dominant. The regulation of the profession was a gradual process during the later 19th century, so that quacks could be distinguished from genuine medical men. Criminal sanctions penalised those holding themselves out as doctors, but liability merely attached to serious breaches of commonly agreed professional standards. The move to liability for ordinary fault, similar to other professions, was gradual (e.g. the decline of gross negligence standards in France and Germany). The definition of fault as departure from professional standards is old (France 1835, England 1838, Germany 1850s, Spain 1923). But it was usual to distinguish ordinary acts in a patient/doctor relationship (e.g. a servant tipping hot ash into a patient’s lap while in a waiting room) and specialist medical acts. Courts have remained very reluctant to impose their own standards in this area and have typically referred to professional opinion. That remains the standard over the period. So what changes? (a) Frequency of litigation: social insurance from beginning of 20th century makes medical treatment more widely available. But personal fault was rarely found. On the whole medical negligence is identified as a distinctive problem only in the 1950s (Bolam, 1957; Karlsruhe discussions 1959). (b) Burden of proof issues: the greater expectations of success in medical treatment and greater technical sophistication and complexity in the medical interventions combined with greater ambition in treatment and the growth of hospitals. Cure is an expectation, not a cause for particular gratitude. The increasing use of equipment is significant (rising from 7% of French hospital expenditure in 1945 to 32% in 1980s) in showing a change in practice. Hospital liability becomes more acceptable in the 20th century. (Original state/Crown immunity (or equivalent) for these disappears in mid-20th century.) The problem of sophisticated treatment (and the greater size of medical teams) is the difficulty of proof and so burden of proof over causation has become a major area. In addition, greater attention to patient autonomy has raised the profile of informed consent (France 1931, Austria 1986), and this has been an area in which the courts have been prepared to challenge the medical consensus. More recent trends (starting with the Dutch in the 1960s) are for alternative dispute resolution and public compensation schemes to replace delict as a means of providing compensation. This leaves medical discipline as a separate regime for deciding whether a doctor should continue to practice.