The Effects of a Lack of Financial Means on the Duty of Care and Liabilities of Hospitals
In the last several decades, most western states have established public health care systems with the objective of guaranteeing to all citizens an affordable basic level of health care provision, the costs of which are covered by compulsory health insurance. Indeed, in many countries, for reasons of welfarism or community solidarity, the level of protection has gone beyond basic provision, with compulsory insurance absorbing a large proportion of care and treatment costs. However, in the last decades, it has become apparent that such extensive cover can no longer be sustained, both because of the development of new treatments, and the enhancement of existing treatments, and because of a continuing increase in quality standards in general.
Initial questions to be addressed are, therefore, which treatments should be paid for by social insurance and how far should the insured’s entitlement to basic medical provision extend.
The core part of the proposed study will focus on the contractual and non-contractual relations between health care institutions and social insurers, and between health care institutions and patients. As regards the former, it is proposed to investigate whether and how exactly the reciprocal obligations between the contracting partners are established, whether the insurance places an obligation to provide particular services on the health care institution (and, if so, which ones), and how provision is made for financial reimbursement in respect of the health care provider’s services. Other related questions are: What role is played by considerations of administrative convenience in the payment arrangements between the two contracting partners? May a hospital decline treatment to those covered by a particular insurance policy on the grounds that the insurance does not adequately cover the costs of the treatment? Who may be held liable if the insured suffers damage because of a failure to treat, and in what circumstances?
As regards the relationship between the health care institution (for short, “the hospital”) and the patient, the focus of the proposed study will be on cases where the hospital fails to perform, or inadequately performs, the services which it is under an obligation to provide due to a lack of available resources. The key question to be addressed is: How does the hospital’s lack of available resources affects its obligations vis-à-vis its patients?
It appears self-evident that hospitals should first exhaust all other possible economies before they effect detrimental restrictions on patient medical care. From this may follow important consequences for tort law: if there is a failure to make such economies, and as a result the medical care provided is deficient, there could be a breach of the hospital’s duty of care and consequently an obligation to pay damages.
In this context, one may also raise questions of organizational liability. As daily clinical life is increasingly subjected to juridical norms and market forces, matters of internal organization become ever more important, particularly in large health care institutions. The greater the number of doctors, nurses and technicians involved in diagnosis and treatment, the more complicated and hazardous the equipment and pharmaceutical products employed, the more complex the division of medical labour, the more caution and expense is required in the planning, coordination and supervision of clinical activities, not least so as to cope with the economic pressure for success.
If restrictions on patient care are unavoidable because every other potential saving has been exhausted, many difficult question arise: Is the hospital able, or required, to refuse to accept a patient for treatment and, if so, under which circumstances? Can the hospital be exposed to a claim in tort if, for example, it takes on a number of patients requiring emergency care even though it knows that it will not be able to cope, or should the standard of care be adjusted to take account of such special circumstances? Does the hospital have to inform the patient about its limited capacities and the consequential risks that may arise? Above all: is the hospital entitled, or required, to set priorities and, if so, according to which principles?
Perhaps the only general proposition that can be advanced with any degree of certainty is that those medical procedures which have the least effect on patients should be restricted first. If this means that there are resources for only the most urgent cases, and that other procedures have to be cancelled, or undertaken in a less than optimal fashion, the difficult question arises of what duties the hospital owes. Should it simply proceed on a first-come, first-served basis and thereby endanger its ability to perform later life-saving operations because of a lack of capacity or a shortage of funds? Or should alternative selection criteria be adopted? Should personal circumstances, such as the patient’s age or general health, be taken into account, with the result that an operation on a twenty-year-old has priority over the same operation on a ninety-year-old, and that the patient who has a higher chance of surviving the operation has priority over the patient whose survival chances are not so high at the outset? Given the undoubted complexity of these issues, the question also arises whether it should be left to the hospital to make such evaluations, or whether the legislator should take responsibility for the establishment of general guidelines to which hospitals would adhere.