A Medical Malpractice Model for Developing Countries?
Drexel Law Review, Vol. 4, p. 217, 2011
25 Pages Posted: 25 Feb 2012
Date Written: June 12, 2011
This Article, written for the symposium "Reforming Medical Liability: Global Perspectives," evaluates the unique plight of developing countries in crafting medical liability regimes. Many developing countries struggle to maintain workable systems for adjudicating physician negligence. This is due to a variety of factors, such as widespread poverty, more pressing public health priorities that demand attention, a scarcity of physicians, immature health care systems, large informal health sectors, regulatory deficits, and weak civil societies, among others. Patients in these countries are also less able than their counterparts in well-developed countries to evaluate and challenge the care they receive and thus serve as early regulatory sentinels.
Given the barriers to redress in developing countries, this article evaluates contemporary reforms in two systems: India, a common law jurisdiction, and Mexico, a civil code jurisdiction. India created consumer forums in the 1980s as an alternative to its notoriously protracted civil litigation system. And Mexico created a medical arbitration system (Conamed) in the late 1990s, also to provide an alternative to civil courts. I argue that given the difficulties that plaintiffs in developing countries often have in procuring physician testimony and accessing their own medical records, Mexico's reforms might be a better model for other developing countries looking for an alternative forum for adjudicating malpractice disputes.
Keywords: medical malpractice, global health, comparative health law, Mexico, India, Conamed, consumer forums, consumer law
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