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The issue of Medical Liability in Europe has been intensively discussed since a long time, and it needs revision to come to a harmonisation. In June 2008, the Council of Europe’s Public and Private Law Unit (DG-HL Directorate General of Human Rights and Legal Affairs), in co-operation with the Health and Bioethics Divisions (DGIII - Social Cohesion), has organised a 2-day interdisciplinary Conference on “The ever-growing challenge of medical liability: national and European responses”. As stated, the aim of the Conference was to gather information, share experiences and examine ways of improving standards of dealing with medical liability in the member states. It is very important to show good practices in the field which simultaneously secure the individual’s access to the judiciary while ensuring just compensation for any medical malpractice were examined.
The practical organisation laid in the hands of Oscar ALARCÓN, Programme Manager- Public and Private Law Unit, Directorate General of Human Rights and Legal Affairs, who had done a great job and a perfect organisation. We also thank Mr. Edwin Kirby as the General Rapporteur, who was responsible for the final conclusions and recommendations.
The authors of this bilingual contribution thank the Council of Europe for the permission to publish our contribution in a special volume. We also thank the organiser who had brought together all relevant actors working in the field of medical malpractice such as representatives of international organisations, legal and medical professions, academic experts etc. along with representatives of civil society involved in the patient’s rights. Therefore, we all had benefit from this important meeting.
St. Jean les Saverne, May 2010
Brigitte E.S. Jansen / Jürgen W. Simon
The question how the responsibility of the private and public sector for financing medical liability claims is organized is very sensitive and a question of the perception and influence of the involved stakeholders.
In the perception of many providers of health care services and their insurers there is the opinion that medical malpractice grows, or with other words: it becomes more and more infeasible in Europe. One of the reasons is the provided information in the mass media and the other the concerns of the health care providers about the reduction of the costs in the system itself, for instance in Germany.
Under this impression the question of compensation of medical malpractice is extremely important for patient’s confidence in the health care system. It is also important for the sustainability and smooth functioning of the healthcare system.
In the 47 member states of the Council we find different tools in use for identifying these tasks and also for risk observation. But the question is if these tools are able to limit the costs especially of liability claims because we all know tendency that for example the price of insurance coverage for medical malpractice has been raising dramatically in many European countries. This tendency seems to be most apparent in Germany but also in other countries. The question is why? It seems that this explosion is strongly linked to the high standards of care, esp. and to the growing number of high-risk specialists like obstetricians, gynaecologists, surgeons, orthopaedists and anaesthesiologists. Therefore we also find a more and more higher level of insurance liability premiums.
In most member states of the European Council a combination of tort law and medical liability insurance policies is used to cover health professionals and institutions in case of patients’ injuries. These regimes typically require proof of the medical liability/negligence through courts’ settlements for victims/patients to be compensated. In a lot of cases this surge is due to a considerable increase of frequency and size of damages awarded by courts.
Beside the legal and economic questions we also find a lack of research in the council member states regarding the ethical consequences of an increasing medical malpractice regime.Thereby the question arises whether the politicians responsible for the financing of the health care system, are aware of these ethical consequences, even if the different systems are able to pay for duty of care through the health care system .
These points raise very sensitive further questions. One is for example the application of the “precautionary principle”  and another question the proportionality of the intervention.
On the other hand in some cases the health care providers do not even follow the minimum level of care that may be required from an average doctor. The reason for this can be a lack of adequate organisation in hospitals, lacking financial means. Also a high amount of stress for physicians and too long working hours may be some of the causes. These side effects need more attention and research to cover the economic and ethical effects.
The following report will give a short overview about the situation in member states of the European Council. Nevertheless in this short time it was not possible to address the member states at all. Furthermore in most countries no information was available and the tendency to provide information through the questionnaire seems limited as we have seen. So we could use mainly some official reports as the OECD report No. 11, the Hope report, the Council questionnaire, and some other sources for our report.
The other problem for gathering the information is the terminology  which also widely differs from country to country. These terminologies are strongly linked to the funding practices, triggers and coverage.
1.1. Types of Compensation mechanism and systems
Medical injuries and compensations are strongly linked to the” types of compensation mechanism.” We can observe two main types of mechanisms for compensation of medical injuries which allows making a distinction in the European Council member states. On one hand a system of compensation of damages on the other hand a “no-fault compensation system”.