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Law and Medicine: Germany

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Ezra now has us traveling to Germany to inspect the wonders of their health care system and medical malpractice policy.

How does it work? Initial claims are referred to mediation boards and expert panels set up by the Physicians' guild. This both speeds the processing of malpractice claims and reduces overall payouts. Patients may reject the result of mediation and take their case to court, where they will encounter a system that looks a lot like our system in the United States. Patients have a slightly lower burden of proof than in the US; specifically, in cases of grave error or failure to provide care equivalent to an "ordinary" doctor, the link of causation between error and injury may be assumed rather than proven. Recent changes in German law have made it easier for patients to win suits by placing burdens of proof upon the doctor rather than the patient.

Who pays? As in the UK and France, the plaintiffs' bar receives no contingency fees and the civil tort system is a "loser pays" system, discouraging malpractice claims. Insurance is presumably purchased by doctors and hospital chains on the private market.

What's the result? The German government has some published studies on malpractice claims, but I don't speak German. You're welcome to take a crack at them if you like. Overall spending on the tort system (which includes general product and service liability, not just medical malpractice) in Germany is roughly 33% lower than in the US when measured by GDP (1.9% versus 1.3%) and over 50% lower when measured by raw dollars per capita ($800 versus $350); however, in isolation this number is not necessarily informative. In the US, the tort system theoretically serves the dual purpose of punishing bad actors and compensating those they harm; in EU countries with strong social safety nets, workers compensation funds or other social insurance schemes fill the second role. So if a doctor performs the wrong operation and accidentally amputates your arm, there's no need to sue the hospital to recover your future income. This artificially lowers the cost of the German tort system when compared to the US system which doubles as a form of workers' comp.

Source: Look Who's Behind 'Tort Reform', The Nation 10/2004, EU Study on National Liability Systems [1, 2]. CBO study on tort reform.

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Last updated by Nicholas Beaudrot on 07:28 21 April 2005