Medical Malpractice Liability

Abstract

Medical malpractice liability is a relatively new but rapid growing area of law since the twentieth century. In order to undertake comparative research on this topic, five countries, including Germany, China, France, England, and the United States were selected as representative models.

In Germany, medical malpractice liability is a variant of fault-based tort liability, according to the Civil Code. In finding the fault of the physician and the causation, devices, such as the objective concept of fault and gross malpractice, are used by the courts. With respective to malpractice, caused by defective products or atomy reasons, the law of strict liability applies.

Tort law of China, in 2009, also reaffirmed that medical malpractice liability is a type of fault-based tort liability. It adapted an objective standard of fault as well as making provisions of presumption of fault under certain circumstances. The new law also overthrew the regulation of the Supreme People’s Court, which required the defendant to prove lack of causation. In malpractice of medical products and blood transfusion, the physician will assume no-fault liability.

In France, the law of medical malpractice differs according to the health provider’s public or private nature. In civil court, dealing with action against private providers, contractual liability applies. French courts use “loss of chance” theory in deciding causation. In 2002, a no-fault compensation scheme, for patients of serious loss, was established by law.

English law considers medical malpractice liability as the cause of action for negligence. The patient, plaintiff, needs to prove that there exists a breach of duty of the physician; damage ensued and the causation relies on a causal relationship between the negligent behavior and the damage. The courts refuse to accept the “loss of chance” approach concerning the causal link. Pure nonphysical damage will not be compensated according to English law.

The American tort law for medical malpractice liability also treats it as negligence. The standard of care is decisive in judging the defendant’s negligence. Courts’ opinions differ from each other, concerning the acceptance of “loss of chance” theory. The dramatic rise in the amount of medical lawsuit, and the rapidly growth of the expenditure of the physician’s premium for liability insurance, led to three medical insurance crisis in the last half-century.