Compensation for damage caused by medical error in private international law: Comparative legal analysis

This study aimed to conduct a systematic, comparative legal analysis of approaches to determining the legal grounds for compensating for damage caused by medical errors in legal relationships involving a foreign element. Comparative legal, formal legal and conflict-of-laws methods were employed, alongside case study and typological methods, to analyse regulatory frameworks and judicial practice in the field of medical liability. The comparative analysis revealed that, although they differ in the normative formulation of the standard of medical care and the mechanisms for its procedural proof, the legal systems under consideration all retain the principle of fault as a mandatory condition for civil liability for medical harm. The German model was found to ensure the highest degree of legal certainty due to the codification of the treatment contract and statutorily defined presumptions. The Czech model was found to institutionalise treatment as a specific contractual type, applying the criterion of care provided in accordance with generally recognised professional medical standards, and allowing for the concurrence of contractual and tortious qualifications. The French model was found to combine the classical construction of civil liability with an institutional mechanism for compensating harm through national solidarity, implemented via the Office national d’indemnisation des accidents médicaux (ONIAM) system. The Italian model was found to be characterised by differentiated liability between medical practitioners and healthcare institutions following legislative reform on patient safety. On the basis of the comparative analysis, a generalised model of proof in medical disputes involving a foreign element was formulated, integrating the following components: substantive grounds of liability determined by contractual or tortious qualification; procedural mechanisms of proof, including presumptions, expert evidence, and redistribution of the burden of proof; and transnational factors, taking into account the application of conflict-of-laws rules, the lex fori principle, and supranational mechanisms of the European Union concerning jurisdiction and the taking of evidence. The practical significance of the findings lies in their potential use by courts and legal representatives for forecasting the risks of refusal to recognise and enforce judgments in cross-border medical disputes