Medical Civil Liability in Belgium. Four Selected Cases

Abstract

Medical liability cases are becoming common practice in Belgium. There are several reasons for the increasing amount of liability cases. First of all, more people than ever are involved in providing health care. The chance that something goes wrong is therefore increasing. Moreover, medicine needs technology but technology may also lead to failures which explains partly the increase in claims. Another important reason why physicians and hospitals are sued more than before, has to do with the role of the sickness funds. These organisations, which pay for the medical expenses, are entitled to bring an action against a physician who, in their opinion, made a mistake. The sickness funds are also partly responsible for their expenses and they are, more than before, inclined to bring actions against physicians in order to have their expenses reimbursed. Finally, the patient is becoming more proactive and will contact the physician, the hospital, the sickness fund and/or a lawyer if he is of the opinion that something went wrong during the treatment. If one looks at the published case law on medical civil liability it becomes clear that the position of the patient is improving. We will explain this on the basis of four selected cases. These cases deal with specific topics of medical civil liability, i.e. the issue of informed consent and information errors (what information has to be given to the patient, who has to give the information, are there any exceptions to the information obligation, etc.), the causation (what about the causal connection between an error and the damage or the loss due to damage), the burden of proof (on whom does the burden of proof fall, on the patient or on the physician e.g. in case of informed consent issues, what about methods of easing the burden of proof) and the extent of compensation (what types of compensation exist). These issues are analysed by summarising, analysing and evaluating four interesting cases. These cases are put in perspective, while the trends in the development of medical civil liability are described.

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