In 1999 the Institute of Medicine reported that most medical injuries relate to unavoidable human error in a context of system failure. Patient safety improves when healthcare providers facilitate blame-free reporting and organisational learning. This is at odds with fault-based civil liability law, which discourages a more open (doctorpatient) communication on medical injuries. The absence of a clear-cut definition of 'medical error' complicates litigation and hence swift, appropriate patient compensation. No-fault systems perform better in this respect. A dual track liability system for medical malpractice is challenging to implement and operate, yet may be the only option for Pan-European harmonisation of medical liability.

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European Journal of Health Law
Erasmus School of Health Policy & Management (ESHPM)

Watson, K., & Kottenhagen, R. (2017). Patients' rights, medical error and harmonisation of compensation mechanisms in Europe. European Journal of Health Law, 25(1), 1–23. doi:10.1163/15718093-12460348