Impact of cost containment measures on medical liability

Owing to the growing health care expenditure and the need to improve efficiency, public authorities have since the 1980s changed their policy with respect to health care. Financial pressures encouraged them to investigate methods to control health care costs. One recent method is the enactment of cost containment measures based on clinical practice guidelines (CPGs) that provide financial or administrative sanctions.

This article describes the legal value of CPGs, the evolution towards cost containment measures based on CPGs, and finally the legal value of these new cost containment measures. It questions whether these measures may have an impact on the medical liability rules and it wants to open the debate on the legal value of these measures based vis-à-vis the professional autonomy of the physician and patients' rights on quality care.

The research for this article is based on a comparative analysis of the legal literature and jurisprudence of a number of legal systems.

The article concludes that, as a result of the rising costs, it becomes increasingly difficult for a physician to balance his duty to take care on the one hand and his duty to control costs on the other. Maintaining a high standard of care towards patients becomes difficult. Consequently, one wonders whether the law should then allow the standard of care to be adjusted according to the available means. Until now, courts in a fault based system have not been willing to accept such an adjustment of the standard of care, but it might well be possible that this attitude will change in case of no-fault compensation systems.