Barry R Furrow

This chapter presents a comparison of liability/compensation systems across countries, which can be challenging because of substantial differences in tort doctrine, judicial systems, and administrative compensation mechanisms. It approaches the problem of patient injury in a healthcare system from the dual (and dueling) perspectives of system responsibility and provider culpability. The basic question that the chapter asks is this: Who should bear the economic costs of medical adverse events? The US system remains solidly anchored in the tort liability system, with its emphasis on negligence-based culpability in medical malpractice cases—but with timid moves toward enterprise liability and statutory communication and resolution programs. By contrast, the Scandinavian systems have publicly funded patient compensation funds.

This chapter examines the processes of litigation arising from medical malpractice liability, changes in tort doctrine, and judicial responses to medical injuries. It first considers physician liability, with emphasis on evidentiary requirements for proving the medical standard of care and how expert testimony on the standard of care has increasingly relied on practice guidelines that articulate the parameters of the standards of care. It then turns to the Affordable Care Act with its emphasis on “best practices” and “practice guidelines,” along with defenses that are available against a malpractice suit. The chapter also looks at the importance of informed consent in promoting patient sovereignty in medical decision-making and alternative dispute resolution as a tool for reducing the risks of malpractice litigation and jury trials. Finally, it discusses the liability of hospitals, taking into account the agency doctrine and corporate negligence as well as nonhospital system liability and nonphysician liability.