Shifts from Liability to Solidarity: The Example of Compensation of Birth Defects
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In most western legal systems, physician and hospital liability for birth defects have been subject of civil liability procedures. In some jurisdictions, however, the liability pressure on obstetrics and gynaecology has decreased as a result of state intervention in the tort process. Such shifts away from tort usually lead to substituting liability with some form of solidarity. The main political motives for these shifts towards solidarity, however, differ. This raises the question of whether and to what extent policymakers act rationally when fully shifting from liability to an alternative scheme. Are these shifts based on a thorough analysis of the problems experienced by the children, their families, the physicians and hospitals involved? What do the underlying causes of these problems tell us about the policy choices made? Against this background, this paper sets out to give an overview of these shifts. In particular, we focus on the United States, England and Wales, and France. We aim to evaluate the alternatives for liability law that have been adopted in some jurisdictions, and to analyse the policy implications of the paths chosen.