Personal injuries and medical malpractice

Personal injuries

The biggest changes, however, concerned the compensation for personal injuries. This is partly due to the fact that many European legal systems neglected the compensation for the non-pecuniary losses regularly connected with personal injuries until very recently.

Examples for this are the ridiculously low damages for pain and suffering paid in most Mediterranean countries until just a few years ago, the exclusion of damages for pain and suffering in cases of strict-liability in Germany up until 2002 or the limitation of pain and suffering claims to the victims of crimes, which Italy's supreme constitutional court did away with only as recently as 2003.

The evidence of change here is significant; the old argument that non-pecuniary damages cannot be compensated with money has lost all meaning. Today, the general standard in Europe is to provide comprehensive monetary indemnification for the immaterial consequences of bodily injuries, and the amounts awarded have increased by leaps and bounds. What is more, courts are increasingly awarding damages for non-pecuniary losses not only to the injured person himself, but also to family members, even if the relatives´ own health has not been impaired.

Another aspect is that personal injuries are being affected more and more by the dramatic increase of medical expenses. Modern medicine is nowadays able to keep many injured persons alive, even though the price for the treatment may be enormous, who just a few years ago would have simply died.

Evidentiary problems concerning medical malpractice

A group of difficult to diagnose "useful diseases" also gained momentum: depressions, post-traumatic stress disorder and minor whiplash traumas, among many others. The question, when the existence of such a disease has to be considered sufficiently proven, has kept many European courts busy. Thus far, no clear trend in court decisions can be discerned. All attempts to impose legal limits on such law suits have failed.

European Courts have also repeatedly encountered evidentiary problems concerning medical malpractice. While Germany's Federal Supreme Court attempted to solve these problems by shifting the burden of proof to hospital carriers, other states such as Belgium are considering to replace the liability for medical malpractice with a no-fault compensation system.

The possibilities offered by modern medicine also led to a number of ethical questions. Regarding the indemnification issues associated with "wrongful birth", there is a growing conviction throughout Europe that parents must at least receive indemnification for the additional costs resulting from the birth of a handicapped child. On the other hand, the liability aspects of euthanasia, genetic screening, reproductive medicine, "red" or "white" (i.e. medical or pharmaceutical) genetic engineering and the distribution of goods of extreme scarcity (e.g. organs for transplantation) are still largely unresolved.

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