Liability for injury and quality of healthcare in the light of foreign experience

Abstract

In one of its recent decisions, the Constitutional Court came up with the thesis that an expansive interpretation of the conditions for claiming compensation for injuries suffered during the provision of health care services is generally beneficial for improving the quality of care provided. Foreign experience, supported by a number of different studies, shows in particular that doctorsʼ fears of litigation can lead to the development of defensive medicine, i.e. the choice of procedures which are not so much justified by clinical judgement as by fears that in any subsequent litigation the doctor in question will be accused of incorrect practice and blamed for the complications arising. In particular, this approach risks placing an unnecessary burden on patients through these procedures and the complications that may arise from them, as well as draining a significant amount of capacity and resources from healthcare and, as a result, worsening access to healthcare as a whole. The debate in a number of countries is how to prevent the development of defensive medicine, or whether to adopt an alternative approach to the concept of accountability in health care provision in the light of this phenomenon.  There are also indications that, in order to maintain the long-term functionality and stability of the healthcare system, it is necessary to reflect societal changes (e.g. demographic changes) affecting the functioning of the healthcare system and to consider the general approach to medicine and perceptions of doctors in the requirements for healthcare provision. The above points argue for the conclusion that the quality of health care should not be clearly linked to an extensive interpretation of the conditions for incurring liability for the harm suffered, but rather to a judicious setting of requirements for the way in which health care is provided and the compensation for any harm that may occur in doing so. Although the topic deserves a broader examination also within the Czech national environment, foreign experience encourages the conclusion that a strict concept of liability in healthcare does not necessarily contribute to improving the quality of healthcare as such.