Error and medical third-party liability insurance

The contractual liability of a physician or public hospitalist performing a liberal act remains based on fault, which the plaintiff (the patient) must prove.

Third party liability of doctors and medical profession

Because doctors perform a risky activity within an organized profession, they have to be accountable for their acts to their peers and patients. In case of a proved fraudulent act pertaining to his exercise, a doctor is liable in civil as well as in penal terms.

Health professionals' liability is characterized by its complexity as it stands on the borderline between two fields: the legal and the medical ones.

The notion of liability, being central to law, conveys in medical terms the cumulative necessity of an error, a damage caused to the patient and of a causality link between the error and the damage.

The doctor's means obligation signifies that medical liability is a responsibility by fault, that is, a doctor can be convicted only when the victim provides evidence of fault affecting his person. It could be a medical error or a failure in the organization of service.

Medical professional third-party liability insurance in France

The medical professional liability insurance witnessed in 2001 a major upheaval. The order number 486, dated November 28, 2001, and called “Perruche”, provided by the plenary assembly of the cassation court, authorizing the indemnification of a handicapped child for the damage resulting from the error of non-detecting his handicap, has triggered fear among practitioners and insurers of a growing dispute and of mounting indifference for medical risks by insurance companies.

The Perruche order contains the risk of encouraging American practices in the field of medical accidents indemnification.

The adoption of the Kouchner law of March 4, 2002, supplemented by law no. 2002-1577 of December 30, 2002 has eased the provisions and reduced the damage of the Perruche decree.

By stipulating: “None can take advantage of a prejudice deriving from the sole fact of one's birth”, this law deprives the child whose handicap went undetected during pregnancy from the possibility of getting indemnified, and attributes the charges pertaining to the handicap to the national solidarity fund.

The legislation sets the indemnification rules for victims of medical accidents, institutes an automatic system of indemnification of hospital-acquired infections and submits health professionals and establishments to insurance of professional third-party liability.

Medical professional third-party liability insurance in Anglo-Saxon countries

In many countries (USA, Canada, Australia, Singapore, Hong-Kong, Ireland, Great-Britain, Denmark, ...) physicians who practice particularly-risky specialties have pooled up to negotiate directly and run their own insurance with insurers and reinsurers.

Based on the creation of a risk management tool, this scheme allows doctors to set aside intermediaries and to directly control the adequacy of their insurance cost evolution according to the reported risks.

In the United States, the news regularly offers examples of record benefits obtained by patients, victims of medical errors.

In the face of the sheer scale of the problem and its economic cost, a new law has been proposed to regulate and limit nationally the indemnifications to which patients may be entitled in the event of medical errors.

The total amount of non-economic damage has been set at 250 000 USD. Compensations for cost directly imputable to medical care or for loss of income following an accident are not limited. The legal time frame to lodge lawsuits has been shortened to three years.