The unbearable lightness of culpability: the compensation for damages in the practice of medicine

Abstract

In face of the growing difficulties presented by tort liability in dealing with medical malpractice and patient's compensation, many advocate the imple mentation of a no-fault system, i.e., a mechanism in which the patient is compensated through an economic fund of risk socialization, in disregard of the demonstration of the physician's negligence. In this study, we compared the main notes of the no-fault model with the classical model grounded in culpability, to determine which one is the most suitable in terms of justice, improvement of health care delivery and patient's safety. We concluded that, despite the fact that the no-fault model carries many advantages, it also involves se veral difficulties, risks and fragilities. In particular, it is doubtful that it promotes diligence in health delivery, since usually the health care professional does not suffer any sanction. Furthermore, it can only operate successfully in light of very particular conditions, not found in the majority of legal orders. Therefore, we do not consider it the most adequate solution, at least when implemented as a general mechanism to deal with injuries caused by medical treatments.