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Danish No Blame Compensation

by

Martin Erichsen, Head of Department, the Danish Patient Insurance Association

Introduction

Regardless of the effectiveness of any system that is used for gathering knowledge about injuries sustained and no matter how good we are at using this knowledge to prevent new injuries of the same type, future injuries to patients who are treated in the public health care sector cannot be avoided. Where treatment is initiated on the basis of human decisions and actionsinjuries will occur, either as a result of errors or failure or as a consequence of adverse events for which no one can be held responsible.

If you ask a patient what he or she regards as the most important factor for feeling secure about the treatment provided, the patient in question will probably feel secure if he or she is told that endeavours have been made to prevent as many injuries as possible. However, it will be just as important to the patient’s sense of security that there is a clear plan, already prior to the operation, for how the patient can be assisted in obtaining compensation if something goes wrong during the treatment. We have such a plan in force in Denmark, and there are also such schemes in the rest of the Nordic Region. Both the patient and the treatment provider find that this offers great security in the treatment situation.

Funding and Organisation of the Patient Insurance Scheme

Statutory patient insurance schemes have been introduced in all five Nordic countries (Sweden, Denmark, Norway, Finland and Iceland) with the previously voluntary Swedish scheme as the model. The patient insurance scheme in Denmark and the schemes in the other Nordic countries constitute a kind of safety net under the tax-funded national health service under which patients have free access to treatment in public hospitals and with general practitioners and specialists in private practice.

The Danish patient insurance scheme, which has been in force since 1992, is not a traditional insurance scheme. Denmark is divided into five large regions, and, with the introduction of the scheme, each region has been made responsible and liable for compensation in connection with all treatments that are offered in the region. This liability covers not only the treatment that is provided at the region’s own public hospitals and on which the region has a controlling influence. The region has also been made liable for compensation for injuries that are sustained in connection with treatment in private hospitals and with general practitioners and specialists in private practice that are based in the region and on whose actions the region, in principle, has no influence.

The Danish patient insurance scheme also deviates from other insurance schemes in that neither hospitals nor physicians nor patients take out insurance to cover the occurrence of injuries. All five regions are self-insured, and they consequently themselves cover all injuries that are sustained by patients.

The administration of the Danish patient insurance scheme is ensured through the following measures:

  • The regions have jointly formed an association, the Danish Patient Insurance Association, which examines and decides all cases regarding patient injuries.
  • The Danish Patient Insurance Association engages legal consultants and physicians to assess and handle the notices of claims for injuries that are filed by patients. The case handling is free of charge for the patient, and the Danish Patient Insurance Association’s legal consultants and physicians have an obligation to help the patient so that the he or she does not need to seek legal advice from an attorney.
  • A public appeals board, the Patient Injury Appeals Board, has been set up with which an appeal can be lodged against any decisions made by the Danish Patient Insurance Association.
  • The compensation system has been separated from the complaints system.
  • All patient injury claims must be filed with the Danish Patient Insurance Association. Patient injury claims may only be brought before the courts when all available procedures in the administrative system have been exhausted. This means that, as a general rule, the cases are heard outside the judicial system, which shortens the overall case handling time, to the benefit of both patient and treatment provider.

The Main Concept of the Danish “No Blame” Principle

The Danish patient insurance scheme is not based on the rules on strict liability. Instead, the scheme entails a significant extension of the liability that follows from the general rules on liability and damages.

The Danish patient insurance scheme is based on a “no blame” principle, which means that the injured patient’s right to compensation is no longer subject to the condition that the physician must have acted negligent in accordance with the general rules of liability for damages, which presuppose a degree of culpability/negligence in the treatment provider who has caused the injury. Even though the treatment has met a generally recognised standard of medical care and treatment, the patient may obtain compensation if the injury has been sustained as a result of the treatment having deviated from the standard of care and treatment provided by the very best specialist in the field (the Specialist Rule). The treating physician’s status and level of training are without importance to this assessment. Less experienced physicians can also provide treatment that corresponds to the very best standard of care and treatment provided by a specialist in the field, whereas experienced specialists sometimes act in a manner that only provides an average standard of care and treatment.

The “no blame” principle also has the effect that compensation may be paid for certain accidental treatment injuries, i.e. if such injuries occur unexpectedly and the extent of the injuries clearly exceeds the consequences that the patient’s underlying disease or original injury would have had if the treatment that not been commenced at all (the Endurability Rule).

The Danish patient insurance scheme consequently covers the most serious of the unforeseen effects of the treatment and is therefore a supplement to the Danish tax-funded social security system. The aim of the total payments from the two systems is to place the patient in a situation as if the injury had not occurred.

Finally, the introduction of the scheme has resulted in a relaxation of the requirements for the evidence that must be presented for a causal connection between treatment and injury. The patient’s access to compensation is consequently only subject to the condition that it must be held, on a preponderance of probabilities (more than 50 %), that the injury is a result of the treatment and not of the patient’s underlying disease or original injury.

Limitation of Cover

However, this requirement for a causal connection also entails a significant limitation of the statutory cover. This means that only injuries resulting from examination, treatment and the like and accidents that occur in the course of the treatment come under the statutory cover provided by the Act. Injuries resulting from the patient’s underlying disease or original injury are excluded from cover.

In practice, this delimitation means that, for example, infections in open fractures are usually not covered by the Act, as such infections are not likely, on a preponderance of probabilities, to have been caused by the treatment provided. Correspondingly, patients who, for example, die from an existing heart condition during a hospital stay, without this being connected with the hospital treatment, will fall outside the scope of the Act.

Finally, the requirement that the injuries must be treatment-related injuries also stresses that the patient insurance scheme is not a guarantee scheme, as discomfort and distress from which the patient continues to suffer despite the provision of relevant treatment are not covered by the Act. In other words, no compensation will be provided under the Danish Patient Insurance Act simply on the grounds that the treatment has not had the expected effect.

The limitation of cover is also of importance in connection with the assessment of the compensation payable for recognised injuries, as compensation is only paid for the additional injury caused in connection with the treatment.

Conditions for Compensation

The legal basis for the Danish patient insurance scheme is found in the Danish Act on the Right to Complain and Receive Compensation within the Health Service. The rules have essentially remained in force unchanged since the introduction of the scheme in 1992.

The Act lays down conditions for compensation that must have been met in order for the injury to trigger the right to compensation. A distinction is made between avoidable injuries as one injury category and unavoidable or accidental injuries that cannot be prevented as another injury category.

Whereas, to a certain extent, avoidable injuries resemble injuries that are covered by the general rules on liability for damages, the cover provided for unavoidable injuries is a special characteristic feature of the Nordic patient insurance schemes.

The conditions for compensation are assessed in successive order. If just one of the conditions has been met, the patient will be entitled to compensation for the injury sustained. In terms of compensation, it is of no importance which of the statutory provisions is used as a basis for acceptance of the patient injury claim.

Avoidable Injuries

The “Specialist Rule” (S. 20 (1), no. 1)

This provision, which also comprises injuries caused by incorrect diagnosis or delayed diagnosis of the patient’s disease, is based on an extension of general principles of liability for damages, as the injury-causing treatment is compared with the very best standard of care and treatment that a specialist in the field in question could be expected to have provided.

The legislator has consequently chosen to apply the strictest standard of liability (optimus vir) to any treatment or examination that is provided in Denmark. If the patient sustains an injury as a result of the treatment provided not having been of the very best standard provided by a specialist in the field, the patient will, as a general rule, be entitled to compensation for the injury sustained.

However, the physical conditions under which the treatment was provided must also be taken into consideration in connection with this assessment, and if the injury has been caused as a result of resource-conditioned limitations in, for example, the hospital’s equipment, it will not trigger payment of compensation. However, this does not apply if the injury has been caused by a lack of medical expertise, as the assessment in accordance with the specialist rule is based on the assumption that the best possible expertise is available in connection with any treatment or examination.

A retrospective angle of approach must not be used in connection with the assessment, and the assessment must therefore solely be based on whether, under the same conditions, the best specialist in the field in question would have provided a different treatment, which would, on a preponderance of probabilities, have resulted in the injury having been avoided. Any knowledge that has been acquired after the period of treatment must not be included in the assessment.

The “Technical Apparatus Rule” (S. 20 (1), no. 2)

This provision entitles the patient to compensation for injuries resulting from the malfunction or failure of the technical apparatus that has been used in the course of the treatment. The technical apparatus concept has a wide scope, as the term covers not only various measuring instruments, anaesthetic equipment and other devices, but also mechanical implants and synthetic prostheses irrespective of whether they are used to replace or support the patient’s own organs. Injuries resulting from a failure of biological donor organs are, however, not covered by the provision.

The delimitation in relation to the specialist rule in Section 20 (1), no. 1, of the Act means that injuries that are sustained as a result of incorrect use of the technical apparatus will be covered by Section 20 (1), no. 1, of the Act, whereas injuries that are due to inadequate maintenance or failure of the technical apparatus must be assessed in accordance with Section 20 (1), no. 2, of the Act. The fact that cover is provided for injuries resulting from inadequate maintenance means that the patient may be awarded compensation in accordance with Section 20 (1), no. 2, of the Act without the need for a large-scale investigation of who was responsible for the maintenance and functional capacity of the technical apparatus in the situation in question.

As the Danish product liability rules are based on an EU Directive, which, as a Member State, Denmark has been under an obligation to incorporate into Danish law, the Danish Product Liability Act applies concurrently with the above technical apparatus rule. In practice, this means that the patient may choose to bring the injury claim against the producer or subsequent middlemen instead of filing a notice of claim with the Danish Patient Insurance Association. However, this option is of more theoretical than practical importance, as it will usually be easier to succeed in a claim that is brought in accordance with the rules of the Danish Act on the Right to Complain and Receive Compensation within the Health Service.

For the liable region in question, the possibility of achieving cover in pursuance of the Danish Product Liability Act means that the region will have a right of recourse against the producer or subsequent middlemen in accordance with the Product Liability Act for the compensation paid by the region in accordance with the the Danish Act on the Right to Complain and Receive Compensation within the Health Service.

The “Alternative Rule” (S. 20 (1), no. 3)

The final possibility for obtaining cover for an avoidable injury is if, based on a subsequent retrospective assessment, the injury would have been avoided if another equally effective treatment technique or treatment method had been used.

Unlike in connection with an assessment in accordance with the specialist rule in Section 20 (1), no. 1, of the Act, an assessment made in accordance with the alternative rule in Section 20 (1), no. 3, of the Act is based on a subsequent retrospective assessment, as, based on the final result of the treatment and the knowledge of the course of the treatment, an assessment is made of whether, on a preponderance of probabilities, the injury could have been avoided if the alternative treatment technique or treatment method had been used.

Recognition of injuries in accordance with the alternative rule is subject to the condition that the alternative equally effective treatment method or treatment technique existed at the time of the treatment. This means that treatment methods that may have been developed after the time of the treatment cannot be taken into consideration.

The provision makes it possible for patients to obtain compensation for injuries that are results of the physician’s choice in those situations in which the physician had an actual choice, at the time of the treatment, between two or more treatment methods that were all equally well suited for treating the patient. However, it is still a condition that the injury would have been avoided, on a preponderance of probabilities, if the alternative treatment technique or treatment method had been used.

The requirement in the provision stipulates that an alternative equally effective treatment method or treatment technique must also be regarded as having been equal at the time of the treatment, which limits the scope of the provision to such an extent that it is only applied in connection with the Danish Patient Insurance Association’s decisions in a very limited number of cases each year.

Unavoidable Injuries

The “Endurability Rule” (S. 20 (1), no. 4, of the Act)

The endurability rule is a kind of omnibus clause in the patient insurance system, and the scope of the rule is therefore best defined negatively. The rule applies to treatment injuries that could not have been avoided in accordance with the provisions in S. 20 (1), nos. 1-3, of the Act, i.e. injuries that could not have been avoided by the provision of better treatment, by the use of non-defective technical apparatus or by the use of an alternative equally effective treatment technique or treatment method.

The central condition for payment of compensation in accordance with this provision is that the extent of the injury exceeds a level that must reasonably be endured by the patient. An injury must be both relatively serious and rare in order for the occurrence hereof to entitle the patient to compensation in pursuance of the provision.

Relative Seriousness

In the assessment of the relative seriousness, the seriousness of the injury sustained must be weighed against the seriousness of the disease or trauma for which the patient was being treated.

In the assessment of the seriousness of the patient’s underlying disease or trauma, the Danish Patient Insurance Association attaches decisive importance to how the disease would have developed without the treatment, to the risks that are normally connected with the treatment and to how good the prospects of the patient being cured after an uncomplicated treatment would have been.