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Cases across countries

Cover Story Health and Wellness January 2019

Cases across countries

Cases across countries

Medical negligence claims have been on a rise in most countries while in some, they are rarely brought to the light. In such countries, their medical associations need to be vigilant against such issues and situations to protect the rights of the patients. Medical negligence claims are pretty common in the US. The medical negligence law is drawn from English common law. It evolved through different rulings in the state courts. The US follows tort (literal meaning, wrongs) liability system, “social insurance of a market society”, wherein the patients are monetarily compensated when it is established that medical negligence has led to the patient’s injury. The medical negligence claims come under the purview of state courts instead of the federal, unlike in many countries.

The judiciary system is built in a way to encourage negotiations between the two involved parties to settle the dispute without going to the jury trial. Allegations must be filed within a time period called “statute of limitation” and this differs for different states. The complainant has to prove that substandard medical care has led to injury to the patient and once proven, monetary compensation is calculated taking into account both financial losses, hits in terms of loss of job and medical costs incurred, and non-financial losses, such as distress and pain. Doctors practicing in the US generally have medical malpractice insurance to safeguard themselves in case of unintentional damages or medical negligence.

Mallet

In many cases, it is a part of the employment contract with a medical institution. Due to the increasing claims of medical negligence, US states have put caps on the total compensation given or on non-financial losses, or constraints on compensation depending on whether the hospital, where the substandard care was provided, is private or public. Various US states have also introduced apology and mandatory disclosure legislation to grant the complainants with alternative options. These legislations encourage doctors to accept their mistake and offer an apology as long as it isn’t taken as legal liability in court. But it has little effect as the scope of the definition of apology in these legislations is very narrow. These tort reforms aim to emphasize the requirement of more transparency in the health sector.

In the UK, medical negligence claims are adjudicated by its courts and most of the doctors are insured by the National Health Services (NHS), which deals with the legal aspects of medicine. NHS doctors aren’t liable for medical negligence claims and thus, don’t carry any medical malpractice insurance.

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NHS insurance funds come from government funds. Jury trials are rare in the UK but otherwise, medical negligence claims follow the same legal path as that in the US. The tort liability is said to be unfair, incompetent and expensive for both the patient and the healthcare professionals and institutions. No-fault liability has been introduced as its alternative and has been implemented in countries like Sweden and New Zealand, which are members of OECD (Organisation for Economic Co-operation and Development; a group of 36 nations). It is a system of “social insurance of goodwill” wherein the patients are compensated without the proof of the care provider’s mistake. Minimum, fixed monetary support is given, without any conditions, to the patient alleging medical negligence, which has resulted in permanent disability or death, when a case comes for a trial to any court before any merit of the allegations is established. Though the system is less expensive and more competent in giving compensation to the patients, it constrains the right to appeal for the patient.

Hammer & Mallet

In France, patients can appeal to the regional review board appointed by the government for their medical negligence claim. In this no-fault liability, out-of-court system, the funds for compensation are contributed either by the national fund (collected from the insurance carried by doctors and hospitals) or general revenue fund. In Germany, arbitration boards and experts panel made by the doctors’ guild hear the medical negligence claims. The results can be rejected by the patients who then take it to the court similar to the US. In Sweden, Finland, Denmark, and Norway, similar out-of-court, no-fault liability system provides compensation for the patients of medical negligence due to inevitable risks of medical care. They also get compensated for injuries due to faulty equipment, equipment misuse, flawed diagnoses and any infection caught during the course of the treatment. In Japan, most of the doctors are members of the Japan Medical Association. The no-fault liability compensations are funded by the collective insurance pool of the association. Private malpractice insurance is also available but not mandatory. Permanent disability or death of the patient due to medical fault is considered a criminal offense in Japan, unlike the US, with the likelihood of the arrest and prosecution of the doctor.

Canada has a similar legal system for medical negligence but such cases have gradually decreased since 1997 due to better patient safety measures and doctors’ regular professional development initiatives. Australia also has a similar medical negligence address system as that of Canada but have concerns similar to America regarding increasing claims and caps on them.

Due to the increasing claims of medical negligence, US states have put caps on the total compensation given or on non-financial losses, or constraints on compensation depending on whether the hospital, where the substandard care was provided, is private or public.

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