The intersection between the practice of law and the practice of medicine can often be frustrating, complex, and fraught with seemingly insurmountable tensions. One of the most obvious situations in which legal and medical professionals combine is that of medical malpractice. The theory behind medical malpractice stipulates that financial repercussions for causing harm to patients through clinical mistakes will be a powerful source of accountability. In other words, if physicians are required to pay for their errors and negligence, they will work harder to prevent errors from happening and the patients will get better treatment. As is the case with most aspects of life, however, infinite complexities come into the picture when theory is put into practice. Although these issues are found in countries all across the globe—albeit in different social and cultural contexts—there are both profound differences and similarities in their manifestations and consequences.
Canada is one country in which the debate is particular visible. Often used as a standard of comparison for the United States, Canada receives about as much criticism for its medical malpractice system as the United States does. However, the reasons for such criticism are quite different, though. While it is common to hear the assertion that medical malpractice lawsuits have unduly high costs in the United States, many believe that the legal structure in Canada result in unfairly low reimbursements to patients.
In Canada, it is a requirement that physicians obtain medical liability insurance, available through the Canadian Medical Protective Association (CMPA). The CMPA thus not only pays the medical malpractice settlements but also defends the physicians during the lawsuit. The organization has frequently been criticized for being too aggressive in its defense, however, often rejecting fair, reasonable settlements, drawing out the process in an attempt to discourage further lawsuits.
There are legal barriers to claiming malpractice settlements in Canada as well. For example, Canada’s general legal system requires the losing party of a court case to pay two-thirds of the other side’s legal fees. This presents a significant risk, especially for the populations of Canada’s lower economic strata. The Supreme Court of Canada, in the case of Koukounakis v. Stainrod (1995), also established a punitive damage award cap of 100,000 Canadian dollars, with only extremely extraordinary circumstances as exceptions. Whiten v. Pilot (2002) also limits the types of cases in which punitive damages may be awarded.
In the end, these procedures allow for a safety net for physicians. They are also quite effective in discouraging patients from filing lawsuits. According to a 2005 study conducted by Anderson and Waters found that the United States has 350% more suits filed each year per person compared to Canada. On one hand, the abuses of the system are prevented, resulting in economic efficiency. On the other hand, the protection that medical malpractice laws offer patients becomes undermined.
For Germany, the number of malpractice lawsuits also under-represent the actual number of malpractice cases experienced in the country. The main reason is the extensive social security system offered by the German government. Because of this safety net, patients suffer very few out-of-pocket losses related to medical malpractice and have comparatively little incentive to engage in a suit. For those who do seek settlements, 92% choose to do so outside of the formal court systems, with medical associations and insurer consultants acting as mediators according to a study conducted by Ziegler and Ehl 2009. Settlements tend to be relatively low.
The implications of Germany’s medical malpractice systems are similar to those of Canada’s. In addition to a loss in the accountability factor, however, the unwillingness of patients to sue for malpractice claims means that social security is shouldering much of a burden of medical malpractice. This creates economic inefficiencies that can be as damaging to a country’s economy as excessive malpractice lawsuits.
The situation in India is quite different. In 1986, the Consumer Protection Act was passed, and in 1995, the court ruled in Indian Medical Association v. V.P. Shantha, A.I.R. that the patients would be counted as consumers under this law. What this means practically is that patients can recover damages more quickly than if they had to go through traditional means of tort law. Tort laws, civil violations toward other individuals, and criminal laws are still available venues through which medical malpractice can be brought to court, but the added option of consumer laws facilitates the pursuit of settlements in the courts. Though such a structure might suggest otherwise, India does not see exorbitant numbers of settlements regarding medical malpractice according to the 2005 study conducted by Anderson and Waters.
While it is important to look at malpractice law in terms of its large-scale public health and economic consequences, it is extremely dangerous to ignore its implications on an individual-level. The threat of legal repercussions has the potential to force physicians to refocus their decision-making efforts from the needs of the patient to their own. This results in the widespread practice of defensive medicine—actions that will likely not benefit the patient but are still implemented solely because they will promote the impression that the physician has been attentive and thorough from a legal point of view. This undercuts the theory behind medical malpractice. Patients are not necessarily getting better services; they are simply getting more services. The threat of litigation makes a large impact on certain clinical decisions: one of the major results is a clear increase in the decision to use tests like MRI/CT scans, radio-isotopes, and fluoroscopy as found by a 2004 study by Fenn, Gray, and Rickman. What is debatable is to what extent those increases are helpful and to what extent they are useless and even harmful.
What, then, is the solution for medical malpractice laws? Is it possible to protect both the patients and the practitioners? How can we ensure that those with fewer financial resources are not being marginalized in this system? The junction between law and medicine remains inevitably difficult, a place of bureaucratic red tape and conflicting interests intensified, as the stakes of life and death loom large in the background. Each country’s system features its own flaws as well as its own qualities, but the relationship between those flaws and qualities seems to be a frustrating game of give-and-take. So what is the correct balance that should be achieved? The answers are as difficult as they are important.