A fundamental principle of liability law is that everyone has to bear his own burdens, unless there exists a good reason to lay this burden on someone else. Like Hamlet, we all have to carry the ‘slings and arrows of outrageous fortune’ that befall us as we go through life. There are instances, however, when it would be clearly unjust to bear this burden ourselves.
One such example is when somebody else is culpable for a fault which causes you to sustain damages, say by causing a traffic accident. Alternatively, it may be unreasonable for you to have to carry the consequences of a certain risk. Imagine you are walking down the Herestraat, when suddenly you are bitten by a dog. Why would you have to carry the burden of such risk, and not the owner of the dog? There could even be cases where somebody else profits from the damages that you sustain, say by selling you tobacco...
In medicine, patient liability claims are often grounded on alleged faults made by their treating physician. There are all sorts of reasons why patients file such claims, not the least of which is that doctors – being human and all – sometimes do make mistakes. The question then is whether in such a particular case it would be just to convey the burden from patient to doctor: is (s)he liable? If so, can the patient seek damages? In answering this question, I hope to offer a brief introduction into a field of law that is important to understand for your future careers as doctors: Dutch liability law.
The two doctrines which form the legal basis of most liability claims are the wrongful act (art. 6:162 DCC) and the breach of contract (art. 6:73 DCC). A wrongful act occurs when the conduct of the physician is wrongful and can be attributed to him. Moreover, the patient must have suffered damages, and a causal link must be established between that physician’s conduct and the patient’s damages. A breach of contract occurs where there is an accountable imperfection in the compliance with an obligation arising out of a contract, for example the medical treatment agreement that exists between patient and doctor based on the Medical Treatment Contracts Act (MTCA). A wrongful act may occur without any such agreement. Consequently, patients may choose one or both doctrines as grounds for their claim. The consequences are the same: liability on the part of the physician and/or the hospital.
To judge whether the physician’s conduct was wrongful or whether there was an imperfection of compliance, a single criterion is used, namely that of the reasonably acting and reasonably competent physician. In the MTCA, this is contained within the notion of the prudent care provider (art. 7:453 DCC). For the wrongful act, this is contained within the notion of an act or omission in violation of what according to unwritten law has to be regarded as proper social conduct (art. 6:162 paragraph 2 DCC).
What is meant by a reasonably acting and reasonably competent physician? Unfortunately, no single answer can be given that applies to all physician’s in all circumstances. Instead, it must be judged on a case-by-case basis. In comparing the physician’s conduct with that of the criterium, a judge will always pay close attention to the particular circumstances of the case. Moreover, the physician needn’t live up to a perfect or even optimal standard. What is required is that the care provided was, within those given circumstances, adequate. If, however, the conduct of the physician was unreasonable or considered incompetent by professional standards, such conduct will be considered wrongful.
Let’s look at a real-life case to see how the particulars play out. A neurosurgeon has made a localization error and subsequently operated on a patient with a herniated nucleus pulposus (HNP) at L3-L4, instead of L2-L3. Contrary to the Court of Appeal, the Supreme Court ruled that, in the given circumstances, the neurosurgeon lived up to the standard of the reasonably acting and reasonably skilled neurosurgeon. The neurosurgeon localized the HNP via the palpation method. According to a consulted medical expert, this method may in rare cases give rise to precisely such a localization error, but was nevertheless accepted as the method of choice within the profession. There were no particular circumstances which should have prompted the neurosurgeon to deviate from it. Hence, by using this method, the neurosurgeon provided adequate care under the given circumstances, and could not be said to have committed a wrongful act. Consequently, he could not be held liable.
In the above example the neurosurgeon stuck to the specialty’s method of choice to localize the HNP. Art. 7:453 DCC, in codifying the notion of the prudent caregiver, also makes mention of professional standards. These standards are put in concrete terms through codes of conduct, protocols, oaths, legal rules, inspection guidelines, technical rules, etc. Healthcare providers are legally expected to know and base their conduct on these professional standards if they are to act as prudent caregivers. A general rule is that deviating from established protocols constitutes an imputable imperfection on the grounds of art. 6:74 DCC, and is only allowed under extraordinary circumstances if doing so is in the patient’s best interest. On the other hand, the criterion of the reasonably acting and reasonably competent physician may necessitate deviating from such protocols due to extraordinary circumstances. Hence, simply abiding by the protocol does not pardon the physician from acting wrongfully per se.
A word on evidence. Most liability claims are handled via an amicable settlement or arbitration. If, however, the patient takes the case to court, evidence becomes paramount. As a Dutch saying goes: being right does not yet mean being proven right. A notable characteristic of procedural liability law, is that in some circumstances a judge may invert the burden of evidence in favor of the patient with respect to causality. It is then the physician, when confronted with a liability claim, who must provide evidence that the damages the patient sustained, were not due to his alleged fault. He may for example argue that the damages would have occurred without his fault either way. If he cannot, the judge will accept the causality as being formally proven.
There you go. You now know some of the basics of Dutch liability law that will become relevant to your future career in medicine. Of course, I’ve only been able to scratch the surface. If you’re up for more medical-legal articles, keep your head up for the next editions of PanEssay, since I may go into such other fascinating topics as medical disciplinary law, medical-criminal liability or any other area of law pertinent to daily medical practice.