Medical Malpractice Liability in the United States of America in the Light of the 19th Century Origins of the American Legal System

The American model of medical malpractice liability has been the subject of lively public and scientific debate for years. This system is characterized by a large number of lawsuits against doctors and very high damages awarded in such cases. In turn, these phenomena contribute to the occurrence of so-called medical malpractice crisis. It seems that an important place in the proper understanding of the American model of physicians’ liability for medical malpractice may be the historical analysis of legal norms regulating this matter. The text claims that the modern specificity of the system of liability for medical malpractice is closely related to the development of American law in its formative period in the nineteenth century. The article indicates four features of the legal system developed at that time, which today are identified as responsible for a large number of lawsuits and high compensation in malpractice trials. These include, in particular, linking medical liability to the tort law regime, domination of the civil law dimension of liability for medical errors, the role of the jury in lawsuits for medical malpractice, and the method of remuneration of attorneys in such cases.

State medical malpractice laws and utilization of surgical treatment for rotator cuff tear and proximal humerus fracture: an observational cohort study

Background How much does the medical malpractice system affect treatment decisions in orthopaedics? To further this inquiry, we sought to assess whether malpractice liability is associated with differences in surgery rates among elderly orthopaedic patients. Methods Medicare data were obtained for patients with a rotator cuff tear or proximal humerus fracture in 2011. Multivariate regressions were used to assess whether the probability of surgery is associated with various state-level rules that increase or decrease malpractice liability risks. Results Study results indicate that lower liability is associated with higher surgery rates. States with joint and several liability, caps on punitive damages, and punitive evidence rule had surgery rates that were respectively 5%-, 1%-, and 1%-point higher for rotator cuff tears, and 2%-, 2%- and 1%-point higher for proximal humerus fractures. Conversely, greater liability is associated with lower surgery rates, respectively 6%- and 9%-points lower for rotator cuff patients in states with comparative negligence and pure comparative negligence. Conclusions Medical malpractice liability is associated with orthopaedic treatment choices. Future research should investigate whether treatment differences result in health outcome changes to assess the costs and benefits of the medical liability system.

Profits, Reputation, and the Risk of Medical Malpractice Liability

We investigate the classic strategy choice between low cost and high quality when quality is not directly observable and legal liability about quality is uncertain. In addition, we investigate how for-profit and nonprofit organizations differ in their responses to a changing risk of quality liability. Our theoretical analysis predicts that nonprofit organizations, because of their lesser dependence on profits and greater dependence on support from donors and local communities based on perceived quality, will adjust their investment in quality more aggressively than for-profit organizations in response to exogenous changes in the risk of quality liability. This difference in responsiveness will be greater for organizations with better reputations for quality. We find support for these predictions using data on hospital medical expenditures, state medical malpractice awards, and tort reforms in the United States for 1997–2006.

Het medisch aansprakelijkheidssysteem en defensief gedrag in België

The medical liability system and defensive behaviour in Belgium The aim of the medical liability system is, on the one hand, providing adequate compensation to victims of medical incidents and, on the other hand, incentivising health care providers to adopt sufficient care. However, the fear of healthcare providers for being involved in a liability procedure in case of a medical incident may cause them to practice defensive medicine. Defensive medicine is defined as the ordering of more tests, procedures and visits (assurance behaviour) or the avoidance of high-risk patients or procedures (avoidance behaviour), primarily (but not necessarily solely) to reduce the exposure to malpractice liability. Although various foreign studies assess the prevalence of defensive medicine, it is not yet sufficiently clear to what extent Belgian physicians act defensively in practice. A survey conducted in 2015 among 90 specialist physicians indicates that the medical liability system in Belgium may have an influence on their clinical practice and decision-making. However, additional research is necessary to inform policymakers about the real prevalence of defensive behaviour and its potential drivers and consequences.

Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

Arzt- und Krankenhausträgerhaftung bei der Implantation von Medizinprodukten

In the last years, several scandals concerning defective implanted medical devices have caused a sensation. The focus of the liability cases was mainly on claims by patients against the medical device manufacturers. A possible liability of the attending doctor or the hospital in the case of the implantation of medical devices, however, has been neglected. The aim of the investigation was to close this gap. In particular, the thesis focuses on the question which rights the patient may have in case of defectiveness of the implanted medical device. This depends to a large extent on the qualification of the contractual relations. In addition, specific problems arising from the interface between medical malpractice liability and medical device law are examined.