Non-Economic Damages in Medical Malpractice Appeals: Does the Jurisdiction Make a Difference?

Abstract

This article assesses predictors of payouts and non-economic damages in medical malpractice cases decided by the Spanish Supreme Court from 2006 until 2010. Medical malpractice cases can be judged in administrative or civil courts, and this distinction heavily relies on the type of hospital where the medical accident took place (in general terms, administrative courts judge cases involving public hospitals and civil courts judge cases involving private hospitals). I find that cases decided by the Administrative Section of the Supreme Court are not more likely to receive damages than cases decided by the Civil Section. The probability of receiving compensation is significantly higher among cases involving permanent major/grave injuries. With respect to non-economic compensation amounts, there are no significant differences between Administrative and Civil cases. This result is confirmed by matching estimation and simulation exercises. There is evidence of vertical inequality according to the level of harm: cases involving permanent grave injuries are those receiving the highest non-economic damages, followed by permanent major, death, permanent minor and temporary /emotional cases. Moreover, the use of scheduled damage tables to quantify damages is associated with higher payouts.