S-2005-04-2015_OVE

Handbook of WMA Policies
World Medical Association ⏐ S-2005-04-2015
WMA STATEMENT
ON
MEDICAL LIABILITY REFORM
Adopted by the 56th
WMA General Assembly, Santiago, Chile, October 2005
and reaffirmed by the 200th
WMA Council Session, Oslo, Norway, April 2015
1. A culture of litigation is growing around the world that is adversely affecting the
practice of medicine and eroding the availability and quality of health care services.
Some National Medical Associations report a medical liability crisis whereby the
lawsuit culture is increasing health care costs, restraining access to health care ser-
vices, and hindering efforts to improve patient safety and quality. In other countries,
medical liability claims are less rampant, but National Medical Associations in those
countries should be alert to the issues and circumstances that could result in an in-
crease in the frequency and severity of medical liability claims brought against physi-
cians.
2. Medical liability claims have greatly increased health care costs, diverting scarce
health care resources to the legal system and away from direct patient care, research,
and physician training. The lawsuit culture has also blurred the distinction between
negligence and unavoidable adverse outcomes, often resulting in a random determi-
nation of the standard of care. This has led to the broad perception that anyone can
sue for almost anything, betting on a chance to win a big award. Such a culture breeds
cynicism and distrust in both the medical and legal systems with damaging conse-
quences to the patient-physician relationship.
3. In adopting this Statement, the World Medical Association makes an urgent call to all
National Medical Associations to demand the establishment of a reliable system of
medical justice in their respective countries. Legal systems should ensure that patients
are protected against harmful practices, physicians are protected against unmeritorious
lawsuits, and standard of care determinations are consistent and reliable so that all
parties know where they stand.
4. In this Statement the World Medical Association wishes to inform National Medical
Associations of some of the facts and issues related to medical liability claims. The
laws and legal systems in each country, as well as the social traditions and the econo-
mic conditions of the country, will affect the relevance of some portions of this State-
ment to each National Medical Association but do not detract from the fundamental
importance of such a Statement.
5. An increase in the frequency and severity of medical liability claims may result, in
part, from one or more of the following circumstances:
a. Increases in medical knowledge and medical technology that have enabled phy-
sicians to accomplish medical feats that were not possible in the past, but that
involve considerable risks in many instances.

S-2005-04-2015 ⏐ Oslo
Medical Liability Reform
b. Pressures on physicians by private managed care organizations or government-
managed health care systems to limit the costs of medical care.
c. Confusing the right to access to health care, which is attainable, with the right to
achieve and maintain health, which cannot be guaranteed.
d. The role of the media in fostering mistrust of physicians by questioning their
ability, knowledge, behaviour, and management of patients, and by prompting pa-
tients to submit complaints against physicians.
6. A distinction must be made between harm caused by medical negligence and an un-
toward result occurring in the course of medical care and treatment that is not the fault
of the physician.
a. Injury caused by negligence is the direct result of the physician’s failure to con-
form to the standard of care for treatment of the patient’s condition, or the physi-
cian’s lack of skill in providing care to the patient.
b. An untoward result is an injury occurring in the course of medical treatment that
was not the result of any lack of skill or knowledge on the part of the treating
physician, and for which the physician should not bear any liability.
7. Compensation for patients suffering a medical injury should be determined differently
for medical liability claims than for the untoward results that occur during medical
care and treatment, unless there is an alternative system in place such as a no-fault
system or alternate resolution system.
a. Where an untoward result occurs without fault on the part of the physician, each
country must determine if the patient should be compensated for the injuries suf-
fered, and if so, the source from which the funds will be paid. The economic con-
ditions of the country will determine if such solidarity funds are available to com-
pensate the patient without being at the expense of the physician.
b. The laws of each jurisdiction should provide the procedures for deciding liability
for medical liability claims and for determining the amount of compensation
owed to the patient in those cases where negligence is proven.
8. National Medical Associations should consider some or all of the following activities
in an effort to provide fair and equitable treatment for both physicians and patients:
a. Establish public education programs on the risks inherent in some of the new
advances in treatment modalities and surgery, and professional education pro-
grams on the need for obtaining the patient’s informed consent to such treatment
and surgery.
b. Implement public advocacy programs to demonstrate the problems in medicine
and health care delivery resulting from strict cost containment limitations.

Handbook of WMA Policies
World Medical Association ⏐ S-2005-04-2015
c. Enhance the level and quality of medical education for all physicians, including
improved clinical training experiences.
d. Develop and participate in programs for physicians to improve the quality of
medical care and treatment.
e. Develop appropriate policy positions on remedial training for physicians found to
be deficient in knowledge or skills, including policy positions on limiting the
physician’s medical practice until the deficiencies are corrected.
f. Inform the public and government of the dangers that various manifestations of
defensive medicine may pose (the multiplication of medical acts or, on the con-
trary, the abstention of the physicians, the disaffection of young physicians for
certain higher risk specialties or the reluctance by physicians or hospitals to treat
higher-risk patients).
g. Educate the public on the possible occurrence of injuries during medical treat-
ment that are not the result of physician negligence, and establish simple proce-
dures to allow patients to receive explanations in the case of adverse events and
to be informed of the steps that must be taken to obtain compensation, if avail-
able.
h. Advocate for legal protection for physicians when patients are injured by un-
toward results not caused by any negligence, and participate in decisions relating
to the advisability of providing compensation for patients injured during medical
treatment without any negligence.
i. Participate in the development of the laws and procedures applicable to medical
liability claims.
j. Develop active opposition to meritless or frivolous claims and to contingency
billing by lawyers.
k. Explore innovative alternative dispute resolution procedures for handling medical
liability claims, such as arbitration, rather than court proceedings.
l. Encourage self-insurance by physicians against medical liability claims, paid by
the practitioners themselves or by the employer if the physician is employed.
m. Encourage the development of voluntary, confidential, and legally protected sys-
tems for reporting untoward outcomes or medical errors for the purpose of analy-
sis and for making recommendations on reducing untoward outcomes and im-
proving patient safety and health care quality.
n. Advocate against the increasing criminalization or penal liability of medical acts
by the courts.