Does application of physicians’ liability ensure or deter the use of innovation?
ENDespite vast research on medical liability, very few studies have examined whether application of physicians’ liability ensure or deter the use of innovation. This question has never been analysed in the Lithuanian context. Thus, the purpose of this paper is to analyse whether application of physicians’ liability ensures or deters the usage of innovative medical procedures. In order to achieve this goal, firstly, general issues of application of liability to health care providers are examined. A special attention is given to the duty of care, the standard of care applicable to medical professionals and providers of health care services since the breach of this duty is a foundation for determining medical liability. The paper provides an analysis of the standard of care established in Lithuania and several other countries, and how it is interpreted by the courts. Secondly, the paper examines whether this application of liability and an interpretation of standard of care provided by courts ensure or deter the application of new innovative procedures. The paper suggests that physicians’ liability concerns prevent from using innovative medical procedures, even whether it proposes benefits and clinical outcomes, whereas the innovative departure from the established practice can bring the greater risk of liability.In the light of the experience of other countries and the opinions of legal scholars, the paper emphasizes the need to ensure the proper interpretation of the standard of care and concludes that the standard of care should be interpreted flexibly by courts in order to ensure the application of safe innovative procedures. The courts should assess whether the use of new medical procedure was reasonable in a particular situation, according to the findings of medical science, and not formally limit its analysis on legal lists of medical procedures applicable to certain diseases or acknowledgement of the used procedure worldwide. Also, the courts should not base their judgement for the use of such procedure on one physician‘s opinion. Such flexible interpretation of the standard of care would allow avoiding disincentives to use innovations. [From the publication]
