Niels Fenger

The physician's civil liability under Danish law

The physicians liability in Danish law is based on negligence, which is assessed by the courts largely on the basis of expert opinions. Such opinions are provided primarily by the Medico-Legal Council rather than by experts selected by the parties. The evaluation of negligence is based on a reasonable man standard and the performance expected of a competent colleague; a hospital will be responsible for the negligence of its employees. The burden of proof generally lies with the plaintiff; negligence will not be presumed and the assessment of the evidence of negligence will be adapted to the individual situation, e.g. factors such as the degree of specialization involved, the time which the physician had at his disposal to make his decision and the resources available to him will be taken into consideration. The courts have shown themselves willing to allow for the fact that doctors differ, i.e. recognizing that there must be scope for reasonable discretion. Because the culpa principle is central, the standard applied to medical knowledge will be that which pertained at the time of the treatment. Where a non-specialist is confronted with a problem which may go beyond the knowledge of his limits and experience, he is under an obligation to refer the patient. The principle of informed consent to treatment is accepted in Danish law, but such consent will readily be considered to have been given tacitly.

The Danish Patient Insurance Act of 1991 (LOV 1991-06-06 NR 367 OM PATIENTFORSIKRING).

In 1991, Denmark established a Patient Insurance Scheme, the fourth Nordic country to do so. Under the various national Nordic schemes, patients can receive indemnification for the consequences of medical injury even where the injury is not caused by negligent treatment. Instead emphasis is laid on whether the injury, viewed in retrospect, could have been avoided or whether the injury, though unavoidable, clearly exceeds the risk that the patient must accept. Differences in the four national approaches are analyzed and it is concluded that a no-fault scheme presents an elegant alternative to the tort law system, which proves to be particularly unsatisfactory in the field of medical accidents.