No-fault Law on Medical Accidents in Belgium: An Evaluation after Six Years

Abstract

AbstractAfter many years of criticism of the medical malpractice system based on negligence, Belgium introduced a law on medical accidents in March 2010. This law created a Medical Accidents Fund. Under this two-track system the victim of a medical accident has the choice to file a claim before the court or to seek compensation from the Fund. The Law on Medical Accidents has four objectives: (1) to create a Fund with a simple and fast procedure that is cost-free to access, (2) to channel and centralise all medical accident claims to the Fund, and to develop a prevention strategy, (3) to compensate more victims by introducing a personal right to compensation for medical accident victims without the need to consider liability, and finally, (4) to achieve a balanced budget. A medical accident without liability can be defined as an accident caused by healthcare which does not lead to the liability of a caregiver, does not result from the patient’s health condition and causes abnormal damage to the patient. The damage is abnormal if it was not supposed to occur given the current state of scientific knowledge, the patient’s health condition and its objectively predictable evolution. Following analysis of the new law, this study shows that it has created a single, central point of contact that is easily accessible and generally understood by medical accident victims. On average fifty new cases a month are submitted to the Fund. In a reasonable number of cases to date, liability of the caregiver has been accepted by the Fund. However, the Fund is rather strict in awarding no-fault compensation for medical accidents without liability. It remains to be seen whether this interpretation can resist the test of judicial review.