Wouter Leclercq

A decade of litigation regarding surgical informed consent in the Netherlands 127 8 METHODS This study involves a retrospective analysis of malpractice claims and MDB decisions concerning SIC disputes. Definitions and information on Dutch law are established in Table 8.1. Medical malpractice claims were obtained from the company database of Medirisk, the Netherlands’ largest provider of medical indemnity insurance. Medirisk, a non-profit organization, covers almost 70% of the country’s registered general hospitals. MDB decisions were obtained from two online legal databases: www. tuchtrecht.nl and www. tuchtcollege-gezondheidszorg.nl . These databases comprise all medical MDB decisions in the Netherlands (Table 8.1). Table 8.1 Definitions. Medical malpractice Professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of medical practice and causes injury or death to the patient. In case of medical malpractice patients can file a medical claim to an insurance company and/or they can file a complaint at a medical disciplinary board (MDB). There is a significant difference between a medical claim and an MDB complaint. A medical claim does not involve the court system, whereas an MDB complaint is a court decision. Medical claim If monetary compensation is sought in professional negligence, patients can file a claim to a medical insurance company (Medirisk). The insurance company then researches that claim. The insurer will consult the accused doctor and ask for a reaction. A medical advisor (who is in the same field as the accused doctor) will analyze the case and give an expert opinion. Finally a lawyer of the insurance company will choose to pay all, some or nothing of the claim. MDB complaint If a patient is not satisfied with the settlement of a malpractice claim or wants to take legal action, a complaint with the MDB can be filed. The MDB consists of fellow professionals of the subject of the complaint. The MDB does not decide on any damages. The board can issue a caution or reprimand or impose a fine. Professionals may also be barred temporarily or permanently from practicing their profession. In the Netherlands, legal complaints are dealt with by regional MDBs primarily. If the patient or accused doctor disagrees with the verdict, an appeal can be made to the national MDB, which makes the final decision. Case identification The flowchart of our study sample is shown in Figure 8.1. All claims and MDB decisions concerning SIC, filed between 1 January 2004 and 31 December 2013 were included for analyses. Cases closed more than 10 years or still in progress at time of this study were excluded. Claims and lawsuits were labelled according to their main subject. Claims with an ‘informed consent’ label and lawsuits with an ‘information’ label were selected. Subsequently all cases within surgical specialties were selected and read completely. Cases