The Law of Medical Negligence in England and Germany

Abstract

Medical malpractice reform has been periodically on the national political agenda in the UK since the 1970s.1 Although a highly specialised and a proportionally small area of personal injury litigation, it has nevertheless attracted a significant degree of political, judicial, and stakeholder interest. This may be attributed in large part to concern over the impact of rising number of claims, as well as compensation payments and legal costs, on the limited resources of the publicly funded National Health Service (NHS). From an academic perspective, much of the interest has centred on possible options for reform which would involve the partial or complete abolition of the current system, to be replaced by either general no-fault or specialised redress schemes. In justifying the need for adopting an alternative approach in the English context, reformers have often pointed by way of comparison to the negative effects created by medical malpractice litigation in countries such as the USA, and have argued it has resulted in spiralling costs, escalating insurance premiums for doctors, a rise in defensive medicine and a decline in the morale of healthcare professionals more generally.2