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                      Current issues in
                                                from the
                                                           edge
        medical negligence litigation across the world




What are the medical negligence litigation issues in some of the major jurisdictions across
the world? How far have developments overseas found their way into Australia, and are
some of our recent and proposed changes appearing elsewhere? Bill Madden asked
correspondents from England, Germany, Italy, Japan and South Africa to describe the latest
trends in their countries and summarises the current situation in Australia.



6   PRECEDENT ISSUE 64 SEPTEMBER/OCTOBER 2004
                                                      FOCUS ON MEDICINE




                                             fee) – with the lawyer’s success fee and     that a sum is set for a future loss and
                                             the insurance premium (for cover             then an annuity is purchased which
                                             against liability for the defendants’        may not produce the regular amount
                                             costs) being recoverable from the            needed.
                                             defendant in successful cases – led to a       The Damages Act 1996 has been
                                             costs war. Defendant insurers were           amended to give judges the power
                                             furious at the extra liability for costs     to order payment of awards by
                                             and embarked upon a relentless               instalments (periodical payments)
                                             campaign to avoid payment by raising         for the first time. The new rules are
                                             technical points on the Conditional Fee      not yet in force but are likely to be
                                             Agreement rules.                             introduced in October 2004.
                                                Matters are beginning to settle down,       The court will be required to
                                             with some issues being settled by            consider these where there is a claim
FRANCES McCARTHY                             industry agreement achieved through          for future pecuniary loss and it may
REPORTS FROM ENGLAND                         mediation and the Court of Appeal            make such an award. It is not yet
                                             deciding test cases. However, an             known how these will be used and
England has faced a huge amount of           atmosphere of distrust remains and           what guidelines will be produced for
change in the world of personal injury       there are calls for contingency fees         the courts, in particular, as to how and
claims, though it pales in comparison        instead. This is a worrying                  in what circumstances they will be
to the scale of the problems being           development in a system where                amended.
experienced in Australia. We have been       damages are barely sufficient, and there
battered with an onslaught in the            is no guarantee that these would be
media alleging we are in the grip of a       increased if costs were to be deducted
compensation culture. A great deal of        from damages.
this is due to the activities of ‘claims        Fixed fees have been introduced for
farmers’ cold-calling injured people,        small, road-traffic cases (that is, below
stopping them in shopping centres and        £10,000 [$25,700]) which settle
charging referral fees, investigation        without proceedings, and there remains
charges and insurance premiums               a constant pressure for this to be
intended to be claimed from                  extended to other areas.
defendants. However, courts have cut            Courts are also now looking at costs
the amounts of the premiums claimed,         capping to monitor costs and there is
and declared part of the payments            pressure for ‘costs budgeting’.
charged by claims farmers to be illegal.
  As a consequence, claims                   MEDIATION                                    AKIHITO HAGIHARA
management companies have suffered           There is increasing use of mediation in      REPORTS FROM JAPAN
serious reverses. Market leader Claims       England. Courts have penalised parties
Direct collapsed in 2002, followed by        in costs for failing to go to arbitration,   NEGLIGENCE AND BURDEN
the next largest The Accident Group          although in the most recent case of          OF PROOF
last year. Other companies have              Halsey v Milton Keynes General NHS           Once a court ruling has revealed
followed. However, they remain a             Trust [2004] EWCA (Civ) 576, the             negligence, the established ruling is as
feature of the personal injury legal         Court of Appeal held that mediation          follows. If the health professional acted
market, with aggressive marketing            should not be compulsory.                    in a manner that was widely accepted
tactics. There are now calls for them to        However, two pilot schemes are            as standard care at the time of health
be properly regulated.                       being run at present, one of which is a      service, he or she does not incur a
  Recent research has shown that the         random automatic referral scheme and         liability with respect to negligence.
compensation culture is a myth, with         virtually compulsory.                        However, if the criteria of standard care
numbers of claims in fact decreasing                                                      vary, depending on the area, decisions
rather than rising. It found that ‘the       DAMAGES                                      may differ in relation to the same
compensation culture is a myth but the       There has been pressure for some time        negligent behaviour. This has been a
cost of this belief is very real’. Whether   for an amendment to the law to allow         significant problem in the past.
that will be enough to convince a            courts to award damages in instalments       However, as healthcare has become
public saturated with compensation           instead of the traditional lump-sum          more uniform in recent years in Japan,
culture stories remains to be seen.          payments. Up until now the only way          interpretation of negligence rarely causes
                                             this could be achieved was by entering       a legal problem at the present time.
COSTS WAR                                    into a structured settlement which              What continues to be an important
The introduction of changes to the           could not be imposed and which has a         problem in Japan, however, is the
conditional-fee agreement (no win no         number of disadvantages – in particular      burden of proof, which stands at a high >>

                                                                                          SEPTEMBER/OCTOBER 2004 ISSUE 64 PRECEDENT   7
                                                    FOCUS ON MEDICINE




    level. When a medical malpractice case                                                      admission agreement that includes a
    is filed with a court, as a principle of                                                    waiver clause, by whose terms the
    tort law it is the responsibility of the                                                    institution as well as all of its staff are
    plaintiff to show that the patient was                                                      absolved from any liability with respect
    given substandard care. If this rule is                                                     to damages caused to patients flowing
    strictly enforced, it is extremely difficult                                                from negligence – including gross
    for a plaintiff to demonstrate                                                              negligence.
    substandard care or negligence.                                                                With the advent of South Africa’s Bill
       To resolve this problem, two                                                             of Rights in 1997, it was hoped that
    suggestions have been made. First,                                                          the right of every South African to
    once indirect evidence of injury                                                            receive proper medical healthcare
    associated with medical malpractice is         RONALD BOBROFF                               would be interpreted by the courts
    demonstrated by the plaintiff, this            WRITES FROM SOUTH AFRICA                     horizontally – that is, that negligence
    implies that the injury has been caused                                                     would be deemed to negate that right,
    through the negligence of the physician        Prior to 1994, South Africa was widely       and that waiver clauses, which
    (res ipsa loquitur). Second, is the            regarded as having one of the finest         effectively encourage lower standards
    suggestion that medical malpractice            public healthcare systems in the world.      and lack of accountability in
    cases should be judged under contract          First-world medical care was available       healthcare, would be proscribed by
    law, and not under tort law. However,          free, or at little cost, to all South        the courts.
    with respect to the level of the burden        African citizens – to such an extent that       In the celebrated case of Strydom vs
    of proof, in an actual litigated case          prime ministers and members of               Afrox Health Care [2001], the court
    there is little difference between the         cabinet would choose to receive              recognised this principle. It held that
    requirements of tort and contract law.         medical care for themselves and their        the waiver clause in question was
                                                   families at state hospitals. That the        inconsistent with the values in South
    MEDICAL EXPERTS                                world’s first heart transplant surgery       Africa’s Constitution and Bill of Rights,
    To resolve the problems associated with        took place at a state Cape Town              and was against public policy, as well
    the introduction of testimony by a             hospital was testament to the extremely      as conflicting with the principles of
    medical expert witness, the following          high level of expertise available.           good faith.
    proposals have been made:                         Since 1994 – assisted by a Minister of       Sadly, this landmark case has been
    (1) A list of medical experts willing to       Health whose peccadilloes include the        overruled on appeal to the Supreme
         support a civil court as medical          belief that garlic, grated beetroot and      Court of Appeal (SALR 2002 Vol 6,
         expert witnesses, as well as an           lemon juice is an effective cure for AIDS    p21), which adopted a strict-law
         indication of their specialties,          – the situation has deteriorated to the      approach to the effect that ‘the
         should be prepared. This list             extent that public healthcare facilities     elementary and basic general principle
         should be updated regularly.              have effectively collapsed, even in the      was that it was in the public interest
    (2) To achieve the first goal, civil           major centres. Consequently, any South       that contracts entered into freely and
         courts and medical societies should       African of means, or who has medical         seriously by parties having the
         establish close ties and collaborate      cover, has no choice but to utilise          necessary capacity should be enforced’.
         in order to develop a system that         private healthcare facilities.                  Having regard to the fact that some
         would provide civil courts with              The problem is that invariably these      80 per cent of South African citizens are
         appropriate information.                  facilities require patients to sign an       functionally illiterate and therefore quite


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8   PRECEDENT ISSUE 64 SEPTEMBER/OCTOBER 2004
                                                       FOCUS ON MEDICINE




unable to understand, let alone read,         concept and to establish what a                danno esistenziale and danno morale by
most hospital admission contracts, the        claimant would or would not have               the courts are generally based on
decision is surprising. Nevertheless, it      done if properly informed about risks          precedent.
has largely closed the door to actions        related to a medical procedure remains
against hospitals, leaving claimants with     a big issue. There is no doubt that the
little choice other than to sue negligent     duty of disclosure is a burden for the
staff, most of whom are persons of            professional – if one fails to warn,
limited means and would be quite              courts tend to consider this misconduct
unable to satisfy any judgment.               an added factor in working out the
                                              value of damages.

                                              EXPERT EVIDENCE
                                              Judges may appoint their own medical
                                              experts as well as the medical experts
                                              instructed by the parties.

                                              DAMAGES 2
                                              As well as pecuniary losses (earnings          CHRISTINE PROEMMEL
                                              and medical expenses), determined by           REPORTS FROM GERMANY
                                              the court according to the
                                              circumstances of the case, there are           In Germany numbers of medical
                                              various types of non-pecuniary losses          negligence cases have been increasing
                                              – for biological damage, that is, loss of      over the past 30 years – from about
                                              physical and/or mental integrity (danno        6,000 claims a year in the ’70s, to
                                              biologico); loss of quality of life (danno     roughly 35,000 claims a year now
SABINA ROSSETTI                               esistenziale) and non-pecuniary losses         being reported to insurance
WRITES FROM ITALY                             for infringement of rights protected by        companies.4 In about 35 per cent of
                                              the legal system (danno non patrimoniale       these an error is found in treatment.
With a plethora of legislation in Italy,      da lesione di posizione garantita              However, this is not seen as unusual or
and no specific Act covering medical          dall’ordinamento); and pain and                distressing. In relation to other
negligence, court decisions are the best      suffering (danno morale).                      comparable professions it is quite
indicator of principles being used. In a          In Italian legislation there are neither   normal,5 and in light of the great
decision this year,1 the Supreme Court        higher-end caps on general damages for         number of daily medical treatments
stated that contractual law is the            pain and suffering, nor lower-end              made by more than 250,000 practising
appropriate system for medical                thresholds to prevent ‘small’ claims.          doctors, the number of claims is
negligence cases. One benefit of this is      Previous interpretation by the                 relatively low.6
the fact that this system provides a          Constitutional Court was that ‘pain and          It is noteworthy that damages
limitation period of ten years,               suffering’ derived from a crime, and           awarded are generally below 30,000
compared to five in tort law.                 could be caused only by criminal               Euros ($1,750). However, in recent
   Since contractual law states that          conduct or behaviour. Recent                   years amounts have increased, and
claimants are only required to prove          judgments 3 have shifted to a wider            damages of more than 200,000 Euros
that the outcome of a professional act –      interpretation. A professional’s               ($345,000) are no longer a rarity.7 In
cure, surgery or whatever – is different      misconduct no longer has to be                 cases of the most severe injuries,
from what it was supposed to be (a sort       evaluated as a crime to entitle the            amounts of one million Euros
of presumption of fault), defining the        plaintiff to claim for pain and suffering.     ($1,725,000) for pain and suffering, in
standard of care is not the main issue,          Only some forms of mental suffering         addition to a monthly pension, are
as it is in tort. The plaintiff has only to   arising from negligence can be                 reached and exceeded.8
show the existence of the agreement           classified as psychiatric damage – to
with the professional.                        obtain compensation the plaintiff must         REFORM
   It is too early to say whether or not      prove that a recognised psychiatric            German law does not have any special
this Supreme Court decision will be the       disorder, or disease, has resulted.            rules or regulations for medical
leading one in the future, though it             The real issue on damages for               malpractice claims and medical
assists in the resolution of present cases    danno biologico concerns decisions on          malpractice is based on case law. Thus
by reducing the possible definitions of       basic monetary values for conditions,          the demands of scrupulousness, the
standard of care.                             and their uniformity at the national           obligation to respect the patient’s right
                                              level. Many local courts have adopted          of self-determination and the
FAIL TO WARN                                  their own tables for determining               subsequent obligation to inform the
Failure to warn is a much-debated             biological damage. Assessments of              patient before treatment, as well as the >>

                                                                                             SEPTEMBER/OCTOBER 2004 ISSUE 64 PRECEDENT   9
                                                 FOCUS ON MEDICINE




       NO WIN / NO FEE                                               duty of documentation and duty to
                                                                     allow discovery and inspection, have
                                                                     been modified by court decisions.
                                                                     Calculation of compensation for
                                                                     personal injury is based on the case


           ECONOMIC                                                  law of the German civil courts.
                                                                        Since the law amending legislation
                                                                     on damages in 2002, an injured patient
                                                                     can claim compensation for damages
                                                                     not only by the law of torts, but also


              LOSS                                                   via contractual liability. A consequence
                                                                     is that if an error in treatment is
                                                                     determined, a doctor has to prove that
                                                                     they are not guilty of negligence.9
                                                                     However, in practice there have been


            REPORTS                                                  few cases where the court found an
                                                                     error in treatment without negligence.10
                                                                        Another effect of this reform is
                                                                     equalising the statute of limitation
                                                                     periods. The usual statute of limitations
       We are a specialised company with highly qualified            in Germany is three years. Claims for
         accounting and other professional consultants               damages in respect to injury to the
                                                                     body or health, such as medical
        with significant litigation experience at all levels.        malpractice cases, are an exception – in
                                                                     these the limitation period is 30 years,
       ◆ Consultants with over 30 years experience                   as in contractual liability. The statute of
       ◆ Rapid reporting service                                     limitations for minors is the same as for
                                                                     adults unless the minor has no
       ◆ No Win / No Fee – subject to our acceptance of              representative – it is usually a parent –
         your instructions                                           when the limitation period does not
       Let us assist you today                                       run out until the minor reaches the age
                                                                     of majority. In practice, these
           Economic Loss Reports & Forensic                          modifications do not have much
                                                                     impact either, as prevailing case law has
        Accountant’s Reports for Claims of all types                 already tried to answer important
                                                                     questions in the same way.11
       ◆    Insurance Claim reports
       ◆    Commercial Evaluations                                   FAILURE TO WARN
       ◆    Family Law Asset Assessments                             Medical surgery is still seen as physical
                                                                     injury by the German courts and only
       ◆    Loss of Business Income                                  legalised by the patient’s consent. This
       ◆    Business Valuations                                      consent takes effect only if the doctor
                                                                     informs the patient about all necessary
       ◆    Financial and Other Investigations                       actions, their urgency, and possible
                                                                     alternative treatments. The patient’s
         PERSONAL INJURY SUPPORT PTY                                 individual situation at the time of
                                                                     treatment is the deciding factor.
                   LIMITED                                              Giving information about the
                                                                     planned process and risks of planned
                     Contact us for further information              surgery forms a central part of the duty
                                                                     to inform patients. Informing patients
                    Sydney 9221 2579                                 about alternative procedures is also
                                                                     part of risk warning. Formerly,
                  Parramatta 9630 1155                               claimants complained about
                                                                     unexplained risks. Nowadays, patients
                     No Win / No Fee                                 in Germany complain mainly about not
                                                                     being informed of alternatives. The
                   Family / Commercial                               reason for liability in these claims is

10   PRECEDENT ISSUE 64 SEPTEMBER/OCTOBER 2004
                                                    FOCUS ON MEDICINE




that only if the patient is adequately                                                     properly informed and warned of risks
informed about the planned treatment                                                       prior to a medical procedure. Recent
is he or she able to understand what’s                                                     reforms have not substituted an
going on and thus able to deliberate                                                       objective test of what a reasonable
about advantages and disadvantages of                                                      person would have done.
the treatment.                                                                               However, the evidence of the
   The time frame in which the                                                             claimant as to what they would have
clarification is given is important. The                                                   done, if so warned, is no longer
German Federal Supreme Court states                                                        admissible – unless the claimant
that informed consent is effective only                                                    concedes the warning would have
if patients are free to make up their                                                      made no difference to their decision.13
mind under the given circumstances. If                                                     Such evidence was otherwise thought
someone gets clinical treatment,                                                           to be so self-serving as to deserve no
clarification only one day before the      BILL MADDEN                                     weight. It seems the courts must
surgery is too late. The amount of time    REPORTS ON AUSTRALIA                            instead approach their task in such
required between clarification and                                                         cases as a ‘matter of hypothesis based
surgery depends on its urgency and         Until a series of civil liability statutes in   upon an evaluation of circumstances
severity.                                  Australia in 2002 and 2003,12 the task          that did not in fact occur, rather than
                                           of defining the duty of care to be              an assessment of whether the
NEGLIGENCE/EXPERT                          exercised by a medical professional had         respondent was telling the truth about
EVIDENCE/DAMAGES                           been left to the courts. However, the           her postulated belief’.14
Significant in considering an error in     medical profession felt, rightly or               Again, it is not yet apparent if this
treatment is whether the service           wrongly, that courts were on occasion           represents any real departure in
provided was widely accepted by peer       too willing to supplant their own views         substance from the pre-existing
professional opinion as competent          of what appropriate medical practice            common law.
professional practice at the time.         should be, rather than listen to the
   As opposed to the Australian system,    experts. Concerns were also raised by           AD HOC LEGISLATION
the medical expert is appointed by the     isolated cases where perhaps a                  Some of the more ‘tort-reform oriented’
court and the court determines the         generalist doctor was judged to the             jurisdictions have fallen into a habit
scope of the expert opinion. The           standard of a specialist, or to a standard      recently of prompt statutory
expert’s opinion is not binding on the     applied elsewhere but not in Australia.         enactments should courts deliver
court. However, it will usually base its     So we have seen attempts to redefine          decisions that appear contrary to the
decision on the findings of the medical    the standard, such as in NSW’s Civil            government’s views on when
expert, and rely on their expertise.       Liability Act ‘that the professional acted      compensation ought to be awarded.
   Most damages are awarded as a           in a manner that (at the time the               Unsurprisingly, this follows
single payment under German law.           service was provided) was widely                controversial cases. Two examples will
Benefits from private insurance policies   accepted in Australia by peer                   suffice, in the medical context.
or public insurance do not affect the      professional opinion as competent                  In a recent case15 a person suffering
amount of these awards. There are no       professional practice’.                         psychiatric illness was not properly
higher-end caps nor lower-end                                                              treated (and possibly detained) in a
thresholds on general damages for pain     FAILURE TO WARN                                 hospital. Soon after, in a delusional
and suffering.                             The courts have been, and still are,            state, he assaulted and killed another
                                           required to determine what a claimant           person. He went on to claim
                                           would, or would not, have done if               compensation for the consequences of
                                                                                           that for him (as no doubt the victim
                                                                                           could have also, had she survived). A
                                                                                           statutory amendment followed,16
                                                                                           precluding such claims.
                                                                                              Similarly, after the success of a claim
                                                                                           seeking the costs of raising a child
                                                                                           without disability,17 following a failed
                                                                                           sterilisation procedure, a statutory
                                                                                           amendment followed.18

                                                                                           LIMITATION PERIODS
                                                                                           Roughly, those jurisdictions that had
                                                                                           six-year limitation periods have seen
                                                                                           them reduced to three. >>

                                                                                           SEPTEMBER/OCTOBER 2004 ISSUE 64 PRECEDENT    11
                                                   FOCUS ON MEDICINE




        More importantly, it was previously       • lower-end ‘thresholds’ for the award     (334); Krumpaszky/Sekte/Selbmann
     the case that the limitation period for a       of general damages for pain and         VersR 1997, 420 (427); Katzenmeier S.
     child would not commence until their            suffering, to prevent small claims;     43. 7 Stein in Mü/Ko § 847 Rn. 8;
     majority – that is, 18 years plus three      • caps on recoverable loss of wages, at    Scheffen ZRP 1999, 189ff. 8 Jung in
     years. If the claim was for a childbirth        a multiple of average weekly            Laufs/Dierks/Wienke/Graf-
     injury, the claim might not be brought          earnings, no matter what the actual     Baumann/Hirsch S. 85 (94); Jahn
     for up to 21 years, which insurers              loss may be;                            Kümper MedR 1993, 413 (414).
     found troublesome. Now, over-                • limitations on damages recoverable       9 Deutsch JZ 2002, 588; Katzenmeier
     simplifying, the three-year limitation          for the value of care provided          VersR 2002, 1066, Heinrichs in
     period will also apply to a child,19            gratuitously, by friends or family      Palandt, § 280, Rn. 42. 10 Heinrichs in
     though there are exceptions,20 and              (again by reference to average weekly   Palandt, § 280, Rn. 42. 11 Hart in Jura
     provisions for extension in some                earnings);                              2000, 14 und 64/70; Katzenmeier
     circumstances.21                             • abolition of interest recoverable for    Arzthaftung S. 81. 12 For simplicity, I
                                                     some past losses; and increase of the   will refer mostly to the NSW Civil
     EXPERT EVIDENCE                                 discount rate on future losses (in      Liability Act (CLA NSW). There are
     This remains an area prone to heated            effect implying a higher assumed        variations in the seven Australian
                                                                                             jurisdictions. 13 Section 5 D (3) CLA
     debate with allegations, particularly by        interest rate net of inflation upon
                                                                                             NSW. at www.austlii.edu.au/au/legis/
     defendant medical practitioners, of             investment of a lump sum).
                                                                                             nsw/consol_act/cla2002161/s5d.html.
     claimants using ‘hired gun’ biased              Long-term care costs remain the
                                                                                             14 Hoyts v Burns [2003] HCA 61.
     witnesses, and persons of limited            single biggest component for major
                                                                                             15 Presland v Hunter Area Health
     competence being prepared to give            claims, which has led to much
                                                                                             Service [2003] NSWSC 754.
     evidence outside their field of expertise.   discussion, though no implementation
                                                                                             16 Section 54A CLA NSW at
     Claimants, on the other hand, complain       yet, of a long-term care scheme. The
                                                                                             www.austlii.edu.au/au/legis/nsw/
     of their difficulty in retaining medical     suggestion is that a successful claimant   consol_act/cla2002161/s54a.html.
     practitioners who are prepared to            would be able to make use of such a        17 Cattanach v Melchior [2003] HCA
     criticise the negligence of others. These    scheme rather than receive                 38. 18 Section 71 CLA NSW at
     issues persist, despite many courts          a lump-sum amount with which to            www.austlii.edu.au/au/legis/nsw/consol
     having implemented codes of conduct          make their own arrangement for             _act/cla2002161/s71.html. 19 Section
     to help expert witnesses understand          the provision of such care.                50C Limitation Act NSW at
     their roles and duties.                                                                 www.austlii.edu.au/au/legis/nsw/consol
        Provision often exists now for pre-       COURT SYSTEM                               _act/la1969133/s50c.html 20 Section
     trial conferences between experts, and       Perhaps partly for the reasons touched     50E Limitation Act NSW. 21 Section
     for the parties or the court to seek the     on above regarding expert evidence,        50D Limitation Act NSW.
     opinion of a single ‘joint’ expert for       the medical profession has continued
     both parties. However, in practice,          to lobby for fundamental change to the
     cases that proceed to trial still usually    court system. Various proposals have       Ronald Bobroff is senior partner at
     do so in the traditional way, with           been made, generally for a panel of        Ronald Bobroff & Partners and current Vice-
     experts giving opinion evidence for one      doctors, rather than a judge or jury, to   President of the Law Society of South Africa.
     party or the other, leaving the court to     determine the merit of medical             Akihito Hagihara is Associate Professor
     reach a decision. Whether this is really     negligence claims. So far such             of Social Medicine at the Kyushu University
     a problem remains in the sphere of           proposals have not found favour            Graduate School of Medicine, Japan.
     anecdotal argument.                          with governments.                          Bill Madden is a partner, professional
                                                                                             negligence, at Slater & Gordon, Sydney.
     DAMAGES                                      Notes: 1 Supreme Court, n. 10297, 28       PHONE (02) 8267 0600. EMAIL
     The changes referred to above may            May 2004. 2 Personal Injury
                                                                                             wmadden@slatergordon.com.au.
     be justified on legal or philosophical       Compensation in Italy by Marco Bona.
                                                                                             Frances McCarthy is head of personal
     grounds.                                     3 nn. 8827 e 8828 del 2003, Corte di
                                                                                             injury at Pattinson & Brewer, London, and
       However, the changes made to the           Cassazione, n. 233 del 2003, Corte
                                                                                             President of the Association of Personal
     law regarding quantification of              Costituzionale. 4 Giesen
                                                                                             Injury Lawyers (APIL), UK.
     damages are for the most part justified      Arzthaftungsrecht Rn. 313,
                                                                                             Christine Proemmel is a lawyer in
     purely on economic grounds – to              Katzenmeier S. 41; Deutsch
                                                                                             Germany.
     reduce the quantum of claims and             Medizinrecht Rn. 173. 5 Hirte
                                                                                             Sabina Rossetti is an advocate in Italy.
     hence to reduce medical indemnity            Berufshaftung insbes. S. 146f.
     insurance premiums.                          6 Laufs, Arztrecht Rn. 552: Klagen weit
                                                  geringer als 1 Promille; Schlund in          Correspondents who have contributed
       So most Australian jurisdictions have
     seen:                                        Laufs/Dierks/                                   to this article can be contacted
     • higher-end ‘caps’ on general damages       Wienke/Graf-Baumann/Hirsch „Die                         via Bill Madden.
       for pain and suffering;                    Entwicklung der Arzthaftung“ S. 333


12   PRECEDENT ISSUE 64 SEPTEMBER/OCTOBER 2004

				
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