Forensic Science, 6 (1975) 235-239 0 Elsevier Sequoia S.A., Lausanne -
235 Printed
in the Netherlands
LIABILITY AND COMPENSATION INDEPENDENT NEGLIGENCE: THE NEW SWEDISH SYSTEM* HJALMAR Department (Received
OF MEDICAL
SJijVALL of Forensic December
Medicine,
2,1975;
Karolinska
accepted
Institute,
December
S-104
01 Stockholm
60 (Sweden)
19,1975)
SUMMARY On the 1st of January 1975 a new system of Treatment Injury Insurance was introduced in Sweden. (Until then the rules of tort law governed all liability insurances.) Almost all medical attendance within, and much of the attendance outside, hospitals is managed by County Councils (Landstingen). The new insurance is contracted by the managing County Council to a pool of Swedish Insurance Companies. The total amount of the premiums for this first year is calculated to be 16 milj Skr (4 milj $ = l/2$ per inhabitant per year). By treatment injury shall be understood “injury or illness of a physical nature . . . as a (excepting natural or probable consequences of an direct consequence . . . of . . . treatment act justified from a medical point of view), or of incorrect result(s) of technical examination or clinical diagnostics, or of accidents in hospitals, doctors’ offices or in connection with ambulance services”.
INTRODUCTION
In order to understand the Swedish public health and sick care organization, it is necessary to know a little about the constitution of the country. All political power emanates from the people - and does so on three levels, at all of which are general elections. (i) The whole country - Riksdag (Parliament), (ii) 25 hndstingskommuner (counties) - Landsting (County (local government units) - KommunCouncils), (iii) 278 primci?kommuner fullmtiktige (Commune Councils, called communes in the following). The various functions of society are divided on the three levels in a historically conditioned way. Since the Reformation, poor relief, and later on child welfare and treatment of alcoholics have always been the province of the communes. Most hospitals for somatic diseases have long been administered by the county councils. Nowadays, almost all medical attendance within, and much outside, hospitals is managed by the county councils. Only 2 of the
*Paper presented at the September 8 - 12,1975.
Seventh
International
Meeting
of Forensic
Sciences,
Zurich,
236
University Hospitals and the National Board control, remain under state administration.
of Welfare,
for planning
and
THE OLD SYSTEM
Until the end of 1974, Sweden adhered to the usual pattern of the Laws of Tort. Compensation for injuries due to malpractice could be awarded only if there had been proven culpable negligence. In a paper read to the 2nd International Meeting on Medical Law, in Washington D.C. 1970 (Sjijvall, Nerd. Fiirs&kr. Tidskr. 51 (1971) 177-188) I surveyed the situation in Sweden then as follows. In the years 1959-69 only 59 patients were indemnified from insurance companies, amounting to about 55 000 Skr (then approximately $11 000) per person, or 300 000 Skr ($60 000) a year. Most physicians and surgeons and many medical students (qualified to take temporary posts) had liability insurance, at premiums of 90 and 35 Skr a year respectively. Since then, however, several important changes have occurred in Swedish law and practice.
I
NEW LIABILITY
FOR DAMAGES
ACT 1972
After many years of preparatory work, a completely new liability for damages act was passed on 2 June 1972, codifying (among many other things) the principal of responsibility for employers. All doctors employed in public or private service have, therefore, been relieved of their former liability for damages. Salus, the insurance company of the Swedish Medical Association, has now fixed new liability insurance premiums. Skr/year Qualified physicians and surgeons A In public service and industrial undertakings without other 50 medical duties 90 B As A but with private practice, too 120 C Others (with only private practice) 30 Medical students and so-called “AT” doctors (qualifying)
II CHANGES
IN LEGAL
PROCEDURE
The new law did not introduce any changes in the injured person’s right to damages, and the negligence rule still applies. The criticisms advanced against the system earlier (in the medical services) were as well founded as before (see Sjijvall, 1971). In the course of the years, many revisions of the legal procedure have been proposed, especially that of the Liability Committee of the National Board of Welfare (Board L.C.) e.g.
A By the Swedish Medical Association - more doctors on Board L.C. B By the Swedish Patients’ Union and by bills in the Parliament - (i) more laymen on Board L.C., (ii) to replace Board L.C. with an impartial special court, (iii) to establish a post of patients’ ombudsman (grievance man) to call attention to grievances and to help and advice complaining patients, (iv) so-called reversed burden of proof, as in road traffic cases, and (v) strict liability in health services as in other “dangerous occupations”. Hitherto only one alteration has been made. Parliament decided that from 1 January 1971 an additional layman was to be included on Board L.C. All the other suggestions have been passed on to a state commission on Medical Liability, whose work has not yet been completed.
III
INSURANCE
INDEPENDENT
OF MEDICAL
NEGLIGENCE
Parallel with this, a private investigation has been going on in Sweden to solve the problem of better protection for patients. The initiative was taken by the Association of Swedish County Councils in February 1971 in collaboration with the four largest private Swedish insurance companies. The problems facing the investigatory committee were, among others: 1 How much was an injured person to receive, over and above what was due from public insurance? The maximum is full compensation according to rules laid down in the Law of Damages. 2 What is to be considered as a basis for compensation for treatment injury, in ‘addition to that stipulated in the culpable negligence rule in the Law of Damages? The maximum is all the shortcomings in perfect health after medical treatment. The committee concluded: 1 ‘“Since this liability is to form a complement to the valid Law of Damages, the compensation should not to any great extent deviate from that of the law of tort. 2 Normal and unavoidable illness and injury risks must still be borne by the patient. This implies, therefore, that it has not been considered possible to design a system of compensation in such a way that it can be conceived as a guarantee for the result of a certain treatment”. The Association of County Councils recommended its members to accept the proposed “Indemnity Rules for Treatment Injury” (Table I). The total premiums have been calculated to amount to 16 000 000 Skr (- $4 000 000), that is, in round figures, about 2 Skr (- 50 cents) per inhabitant. The insurance applies from 1 January 1975 to all public health services. It is also offered (on somewhat modified terms) to private hospitals and private practitioners (for private practitioners the premium is 50 Skr a year, over and above the 120 Skr for third party liability insurance), to communes and to private enterprises.
I
I
Only indirect connection
Mental inJury or illness
Examination by means of techmcal factllties neglected
with health and sick care
I
OR INFECTION
EQUIPMENT,
IF
IIn other area or premises wlthout dlrec connection between tt accident and health an sick care)
SICK CARE BE AVOIDED.
Existing symptoms of illness not observed _....................... ~.~...
CONTAMINATION
Natural or probable consequence of a medically lustified act (~ncl. the taking of risks to avoid a threat to lwe or of disab
$3.2 OTHER
-COULD NOT
IN
loss
of
according to general principles
(after deductjon
0 = No mderrinity
CAPITALS Bold type -------
= Burden of proof w,th the ,ns”rer = Burden of proof with the claimant = Including cases with rned!cal negllgerlce
or
i
according to the specoal tables of the
(except for some
of
Indemnity, but If death occurred before an agreement was made 0
Permanent disfiyurement and disadvantage
Pain and suffering
for non-pecuniary
current Swedish law of torts,
from other source(s) IS deductible
Apportionment laws of torts
Reasonable compensat,on 200 Skri
Full compensat,on
INO annu,ty. wt an amount = 4 times, the lndemnlty for permanent dlsflgurement and disk advantage
las life annuItyi
In all cases any Indemnity capital amountsl
less than 30%
InvaliditY at least 305
Full compensatlo”
will be Indemnlfled in accordance wfh as follows for pecun,ary loss
“$7.41 in the event of nuclear damage as defined I” the Nuclear Llabllev Act 1 9, damage whose origin or range is, directly or indirectly, caused by or has connection with earthquake, eruption. war, invasion, actlom of the enemy, operations similar to war, whether war has been declared or not, CIVII war, mutiny, revolution. revolt. riot, or measure taken by any usurper of power”
lndemmty WIII neverthe less not be paid iaccor~ ding to $7.4)
-
QUALITIES
$3.1 BY INJURIOUS THE INJURY.
othsrw
235 Printed
in the Netherlands
LIABILITY AND COMPENSATION INDEPENDENT NEGLIGENCE: THE NEW SWEDISH SYSTEM* HJALMAR Department (Received
OF MEDICAL
SJijVALL of Forensic December
Medicine,
2,1975;
Karolinska
accepted
Institute,
December
S-104
01 Stockholm
60 (Sweden)
19,1975)
SUMMARY On the 1st of January 1975 a new system of Treatment Injury Insurance was introduced in Sweden. (Until then the rules of tort law governed all liability insurances.) Almost all medical attendance within, and much of the attendance outside, hospitals is managed by County Councils (Landstingen). The new insurance is contracted by the managing County Council to a pool of Swedish Insurance Companies. The total amount of the premiums for this first year is calculated to be 16 milj Skr (4 milj $ = l/2$ per inhabitant per year). By treatment injury shall be understood “injury or illness of a physical nature . . . as a (excepting natural or probable consequences of an direct consequence . . . of . . . treatment act justified from a medical point of view), or of incorrect result(s) of technical examination or clinical diagnostics, or of accidents in hospitals, doctors’ offices or in connection with ambulance services”.
INTRODUCTION
In order to understand the Swedish public health and sick care organization, it is necessary to know a little about the constitution of the country. All political power emanates from the people - and does so on three levels, at all of which are general elections. (i) The whole country - Riksdag (Parliament), (ii) 25 hndstingskommuner (counties) - Landsting (County (local government units) - KommunCouncils), (iii) 278 primci?kommuner fullmtiktige (Commune Councils, called communes in the following). The various functions of society are divided on the three levels in a historically conditioned way. Since the Reformation, poor relief, and later on child welfare and treatment of alcoholics have always been the province of the communes. Most hospitals for somatic diseases have long been administered by the county councils. Nowadays, almost all medical attendance within, and much outside, hospitals is managed by the county councils. Only 2 of the
*Paper presented at the September 8 - 12,1975.
Seventh
International
Meeting
of Forensic
Sciences,
Zurich,
236
University Hospitals and the National Board control, remain under state administration.
of Welfare,
for planning
and
THE OLD SYSTEM
Until the end of 1974, Sweden adhered to the usual pattern of the Laws of Tort. Compensation for injuries due to malpractice could be awarded only if there had been proven culpable negligence. In a paper read to the 2nd International Meeting on Medical Law, in Washington D.C. 1970 (Sjijvall, Nerd. Fiirs&kr. Tidskr. 51 (1971) 177-188) I surveyed the situation in Sweden then as follows. In the years 1959-69 only 59 patients were indemnified from insurance companies, amounting to about 55 000 Skr (then approximately $11 000) per person, or 300 000 Skr ($60 000) a year. Most physicians and surgeons and many medical students (qualified to take temporary posts) had liability insurance, at premiums of 90 and 35 Skr a year respectively. Since then, however, several important changes have occurred in Swedish law and practice.
I
NEW LIABILITY
FOR DAMAGES
ACT 1972
After many years of preparatory work, a completely new liability for damages act was passed on 2 June 1972, codifying (among many other things) the principal of responsibility for employers. All doctors employed in public or private service have, therefore, been relieved of their former liability for damages. Salus, the insurance company of the Swedish Medical Association, has now fixed new liability insurance premiums. Skr/year Qualified physicians and surgeons A In public service and industrial undertakings without other 50 medical duties 90 B As A but with private practice, too 120 C Others (with only private practice) 30 Medical students and so-called “AT” doctors (qualifying)
II CHANGES
IN LEGAL
PROCEDURE
The new law did not introduce any changes in the injured person’s right to damages, and the negligence rule still applies. The criticisms advanced against the system earlier (in the medical services) were as well founded as before (see Sjijvall, 1971). In the course of the years, many revisions of the legal procedure have been proposed, especially that of the Liability Committee of the National Board of Welfare (Board L.C.) e.g.
A By the Swedish Medical Association - more doctors on Board L.C. B By the Swedish Patients’ Union and by bills in the Parliament - (i) more laymen on Board L.C., (ii) to replace Board L.C. with an impartial special court, (iii) to establish a post of patients’ ombudsman (grievance man) to call attention to grievances and to help and advice complaining patients, (iv) so-called reversed burden of proof, as in road traffic cases, and (v) strict liability in health services as in other “dangerous occupations”. Hitherto only one alteration has been made. Parliament decided that from 1 January 1971 an additional layman was to be included on Board L.C. All the other suggestions have been passed on to a state commission on Medical Liability, whose work has not yet been completed.
III
INSURANCE
INDEPENDENT
OF MEDICAL
NEGLIGENCE
Parallel with this, a private investigation has been going on in Sweden to solve the problem of better protection for patients. The initiative was taken by the Association of Swedish County Councils in February 1971 in collaboration with the four largest private Swedish insurance companies. The problems facing the investigatory committee were, among others: 1 How much was an injured person to receive, over and above what was due from public insurance? The maximum is full compensation according to rules laid down in the Law of Damages. 2 What is to be considered as a basis for compensation for treatment injury, in ‘addition to that stipulated in the culpable negligence rule in the Law of Damages? The maximum is all the shortcomings in perfect health after medical treatment. The committee concluded: 1 ‘“Since this liability is to form a complement to the valid Law of Damages, the compensation should not to any great extent deviate from that of the law of tort. 2 Normal and unavoidable illness and injury risks must still be borne by the patient. This implies, therefore, that it has not been considered possible to design a system of compensation in such a way that it can be conceived as a guarantee for the result of a certain treatment”. The Association of County Councils recommended its members to accept the proposed “Indemnity Rules for Treatment Injury” (Table I). The total premiums have been calculated to amount to 16 000 000 Skr (- $4 000 000), that is, in round figures, about 2 Skr (- 50 cents) per inhabitant. The insurance applies from 1 January 1975 to all public health services. It is also offered (on somewhat modified terms) to private hospitals and private practitioners (for private practitioners the premium is 50 Skr a year, over and above the 120 Skr for third party liability insurance), to communes and to private enterprises.
I
I
Only indirect connection
Mental inJury or illness
Examination by means of techmcal factllties neglected
with health and sick care
I
OR INFECTION
EQUIPMENT,
IF
IIn other area or premises wlthout dlrec connection between tt accident and health an sick care)
SICK CARE BE AVOIDED.
Existing symptoms of illness not observed _....................... ~.~...
CONTAMINATION
Natural or probable consequence of a medically lustified act (~ncl. the taking of risks to avoid a threat to lwe or of disab
$3.2 OTHER
-COULD NOT
IN
loss
of
according to general principles
(after deductjon
0 = No mderrinity
CAPITALS Bold type -------
= Burden of proof w,th the ,ns”rer = Burden of proof with the claimant = Including cases with rned!cal negllgerlce
or
i
according to the specoal tables of the
(except for some
of
Indemnity, but If death occurred before an agreement was made 0
Permanent disfiyurement and disadvantage
Pain and suffering
for non-pecuniary
current Swedish law of torts,
from other source(s) IS deductible
Apportionment laws of torts
Reasonable compensat,on 200 Skri
Full compensat,on
INO annu,ty. wt an amount = 4 times, the lndemnlty for permanent dlsflgurement and disk advantage
las life annuItyi
In all cases any Indemnity capital amountsl
less than 30%
InvaliditY at least 305
Full compensatlo”
will be Indemnlfled in accordance wfh as follows for pecun,ary loss
“$7.41 in the event of nuclear damage as defined I” the Nuclear Llabllev Act 1 9, damage whose origin or range is, directly or indirectly, caused by or has connection with earthquake, eruption. war, invasion, actlom of the enemy, operations similar to war, whether war has been declared or not, CIVII war, mutiny, revolution. revolt. riot, or measure taken by any usurper of power”
lndemmty WIII neverthe less not be paid iaccor~ ding to $7.4)
-
QUALITIES
$3.1 BY INJURIOUS THE INJURY.
othsrw
