Professor of Private Law and Academic Director Tilburg University and Hague Institute for Internationalisation of Law
Medical liability: a sick system that could do better
People who suffer because something went wrong in a hospital, can get victimised again by the procedures of obtaining compensation. Lawyers and medical experts bombard each other for years in fruitless discussions about who was at fault. Innovation of this outdated system is both necessary and possible.
As with many other countries, the Netherlands has a good healthcare system where doctors achieve amazing results using the most up-to-date treatments. Yet sometimes things go seriously amiss, and that affects around 2500 people every year. Even though their life will have changed dramatically, they must find their way through a far-from-caring liability system. The Tros Radar TV programme devoted a series of broadcasts to the problems. Victims told of bad behaviour by insurance claim handlers, medical records that went missing and endless court procedures. Every single euro of compensation is fought for and there is no neutral body that victims can really count on.
In the 1 October broadcast, Medi Risk and Centramed stood in the dock. These are the insurers to whom the Dutch hospitals and doctors outsource their much needed aftercare. Although these companies have developed a code of conduct, they are primarily judged on the cost of the premiums they charge. So they have an interest in squeezing compensation paid to victims.
But there are other parties that have organised themselves in such a way that they have a share in this broken system. The broadcast could have also featured lawyers who financially benefit from each and every letter they write and new experts they call. It could have invited judges who work with procedures that cause them to establish blame rather than working on solutions. Or the Ministry of Security and Justice not having reasons to resolve the situation, because ministers are focusing on criminal justice and areas with high legal costs for the government. Or it could have zoomed in on Dutch MPs launching ever more simplistic proposals for laws, because they do not have the resources to investigate a more comprehensive solution.
Innovation like an iPad launch is needed
Improving the lot of medical accident victims needs real innovation. That looks more like the way products such as the iPad are brought to market than lawmaking. For the best possible treatment of the victims, cooperation is needed between dozens of professionals, each of which should contributes an exact fit to a just end result. And for everybody, there should be a financial interest, just like the Apple supplier who is only assured of continuing payments if you are happy sitting on the couch with an iPad on your lap.
The first step towards real innovation to come, lies in setting ambitious goals. The Dutch parliament and the Ministry of Justice can formulate these. For example, victims of serious medical accidents need information about exactly what happened. Doctors and other caregivers should in turn be offered a route to accountability that is not burdensome, and be helped to to recognise their contribution to harm done and a commitment to remedy the situation of the victim. Both victims and caregivers have an interest in closure. A very difficult phase in the life of a victim has to be turned into a perspective for the future. .
If such goals are set, it is then up to the hospitals, the insurers, the victim support organisations and the courts to invest in innovation. There is a large and untapped reservoir of knowledge available about dispute settlement, damage assessment, complaints, victim studies, modern forms of legal procedure, finance and insurance techniques. What combinations of solutions work best is a matter of figuring out a way - innovation can quickly result. Modern innovation processes are controlled so that within a few months there is a working prototype, which within a year can lead to major changes.
Less argument in the courtroom
One important obstacle to a fair process in these cases is the artificial distinction between full liability due to a doctor’s error and complications where the victims are completely left to themselves. Research has exposed a more complicated reality. A series of unexpected situations, second-best reactions and instances of failing communication between caregivers are usually the causes of disastrous outcomes. Dealing with responsibility for these patterns of interaction requires creative solutions, not a simple black and white choice.
Innovation always means that roles change; professionals get more interesting work along with higher added value. The adversarial model of justice should also be up for discussion in this innovation process. The way lawyers, experts and insurers interact with each other in the courtroom causes much distress to the victims. Judges are much better placed if they do not act as a referee but as benevolent supervisors of the difficult process of handling the consequences of things that go wrong in hospitals.
When a more or less routine treatment led to serious consequences for a patient, quick and impartial investigations are advisable. A timely reconstruction of the events can provide an important need of patients: knowing what happened. On this basis, insurance claims handlers and lawyers can avoid much of the current wrangling with experts, witnesses and missing documents in medical files. The time saved can be used for a more intensive support for the victim.
The healthcare system witnesses every day how innovation can alleviate human suffering. It would be great if this sector would start using this innovative potential for the development of sound, evidence-based ways to care for the most serious casualties of medical incidents.