Recent trends in medical liability (2017-2019)

Abstract

Medical liability ensues when a medical professional behaves in a manner that is below the standard expected from him, causing his patients an injury or harm, which he is required to compensate. In Common Law systems, medical liability is generally established on the basis of the tort of negligence. However, the Maltese Courts apply numerous tests to determine the responsibility or otherwise of the physician. In fact, the Maltese Courts apply both principles of contract and tort in cases of medical malpractice and assess medical liability through concepts such as culpa, professional error and zball grossolan. The lawyer cannot guarantee that he will win a case and in the same way, a doctor cannot promise that he will cure his patients. In fact, landmark judgments have established that the obligations of physicians are based on contractual obbligazioni di mezzi, as opposed to obbligazioni di risultato. Nevertheless, jurisprudence has also determined that the physician is also obliged to ensure that his actions do not result in worsening the patients’ wellbeing and conditions. As the title suggests, this research paper will aim to determine multiple trends relating to issues of medical liability that stem from Maltese Civil Jurisprudence between 2017 and 2019. Despite not adhering to the law of precedent, the Maltese Courts many times refer to preceding judgments, especially since the Civil Code provisions on the subject are broad and generic in scope. As a result, jurisprudence has proven to be a valuable source both to the Courts in helping them reach a viable conclusion and also to medical personnel, by laying down principles which they can pursue.