Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Noneconomic Damages Differently?

Published date01 June 2019
Date01 June 2019
Medical Malpractice Appeals in a Civil Law
System: Do Administrative and Civil Courts
Award Noneconomic Damages Differently?
Sofia Amaral-Garcia
How do courts award noneconomic damages? Does it matter if the state is
the defendant? This article addresses these questions in the context of medi-
cal malpractice appeals to the Spanish Supreme Court. Moreover, this study
provides the first empirical analysis of the quantification of noneconomic
damages in medical malpractice cases in administrative courts, where the
state is the defendant, and in civil courts. This separation of jurisdictions is a
common feature in civil law tradition countries. Yet, critics of this separation
in general, and specialized courts in particular, argue that parties might be
subject to different treatments and that similar cases might reach different
outcomes, namely in terms of the quantification of damages. A consistent
result of this paper is that no significant differences between noneconomic
damages in civil and administrative appeals were found. The separation of
jurisdictions does not necessarily imply that courts reach different outcomes,
even when the state is the defendant. Citizens should not refrain from bring-
ing their claims forward against the state, a more powerful party. In the cur-
rent era of increasing juridification and judicialization of modern life
(Ginsburg 2009; Hirschl 2006; Hirschl 2011), it is crucial for society that citi-
zens and other parties litigating with the state are not disadvantageously
How do courts award noneconomic damages? Does the
answer to this question change if the state is the defendant?
Understanding the outcomes of court cases involving the state is
crucial for any society because a relevant proportion of litigation
involves the state and these decisions affect a large number of citi-
zens and private parties. In this article, I provide the first empiri-
cal analysis of the quantification of noneconomic damages in
medical malpractice appeals in Spanish administrative courts,
I am grateful to Ted Eisenberg, Michael Faure, Nuno Garoupa, Fernando Gome
Pomar, Gerard Hertig, David Hyman, Jonathan Klick, Sonia Ramos, Louis Visscher,
Rainer Winkelmann, and the participants at the European Conference on Health Eco-
nomics (Zurich), AEDE (Valencia), ETH Zurich, and the University of Zurich for helpful
feedback. I am particularly grateful to Mattia Nardotto, the reviewers, and editors at the
Law & Society Review for their insightful comments on this paper (previous tittle: “Non-
economic Damages in Medical Malpractice Appeals: Does the jurisdiction make a difference?”).
Financial support is acknowledged to FCT, PortugueseMinistry of Higher Education and
Science, grant SFRH/BD/37917/2007.
Please direct all Please direct all correspondence to Sofia Amaral-Garcia, Hasselt Uni-
versity, Agoralaan, Building D, 3590 Diepenbeek,B elgium;
Law & Society Review, Volume 53, Number 2 (2019): 386–419
©2019 Law and Society Association. All rights reserved.
where the state is the defendant, and in Spanish civil courts. Spain
is a civil law tradition country, as are approximately two-thirds of
the legal systems worldwide (Mahoney 2001).
The specific empirical focus of this article is on Supreme
Court (hereinafter SC) appeals. More precisely, this article starts
by considering medical malpractice appeals
to the Spanish
Supreme Court (hereinafter SSC) from 2006 through 2010,
examining whether or not there are case characteristics that pre-
dict a positive payout. Subsequently, the article uses the legal sepa-
ration between administrative and civil jurisdictions (a feature
common to other civil law tradition countries) to test whether
administrative courts award noneconomic damages differently
than civil courts
(economic damages which, in this setting, com-
prise essentially loss of income and medical expenses are
excluded). Medical malpractice cases in civil law tradition coun-
tries generally can be tried in different courts. In some legal sys-
tems such as in that of Spain, medical malpractice claims can be
brought to either administrative courts or civil courts, depending
on the identity of the defendant (private or public healthcare pro-
vider). Therefore, whenever a medical accident takes place in a
public hospital, patients should file their claims in administrative
courts and whenever a medical accident takes place in a private
hospital, patients should file their claims in civil courts. This
means that the state is inevitably the defendant in administrative
cases. The division of jurisdictions is a typical feature of civil law
tradition countries where, as Merryman and Perez-Mordomo
(2007): 86) describe, it is “usual to find two or more separate sets of
courts, each with its own jurisdiction, its own hierarchy of tribunals, its
own judiciary, and its own procedure, all existing within the same nation.
Civil law tradition countries make a strong distinction between
private law and public law. Administrative courts specialize in
administrative law
(a branch of public law focusing on public
administration) and, therefore, mainly adjudicate cases involving
the state. Administrative courts resolve disputes that are specific
to the role of the state and protect citizens from state overreach.
Moreover, administrative courts can be asked to perform judicial
review of administrative decisions (e.g., to determine if a public
For more on the Spanish legal system in medical malpractice cases, see Ferrara
et al. (2013), Koch (2011), Arroyo and Ya
¨ez (2013), Martin-Casals et al. (2003),
Amaral-Garcia (2015b), Amaral-Garcia and Garoupa (2015) and Amaral-Garcia (2017).
Although the issue of specialized administrative lawmaking has received some
attention in the U.S., the institutional arrangements are remarkably different.
Despite this common feature in civil law tradition countries, there is no unique
model for administrative courts or for the adjudication of litigation involving the state
(Amaral-Garcia 2015a).
Amaral-Garcia 387
body acted beyond the scope of its powers or if a public body
failed to act or perform a duty statutorily imposed on it).
This separation of jurisdictions
has led some scholars to con-
sider it as an example of inefficiency in legal governance in civil
law tradition countries.
One argument is that the civil law tradi-
tion “assumes a larger role for the state, defers more to bureaucratic deci-
sions, and elevates collective over individual rights. It casts the judiciary
into an explicitly subordinate role” (Mahoney 2001: 511).
Courts play a crucial role in adjudicating cases, and they have
an impact on citizens and society; they also matter for economic
growth and development (Mahoney 2001). Moreover, courts are
also relevant for policy: courts are one institutional actor in the
making of policy—they are neither insignificant nor capable by
themselves of transforming politics without other institutions
(Sterett 1994). It is therefore important for courts not to have a
bias in favor of any particular party in the litigation process, and
this holds for every type of case. Cases involving the state are nat-
urally also included in this consideration, particularly nowadays
that the state is a constant presence in many spheres of daily life,
its powers vast and its functions quite complex (Amaral-Garcia
2015a). The state has particular functions that private citizens do
not have, such as the declaration of war, collection of taxes, issu-
ance of passports, and the monopoly of legitimate coercion
(Cane 2011).
When considering the outcomes of court cases involving the
state or the government, there is some evidence that the govern-
ment may fare better than private parties in terms of case dura-
tion (Bielen et al. 2015) or in terms of obtaining reviews and
reversals of lower court judgments (Eisenberg et al. 2011). This
could raise concerns, especially in a period of increasing juridifica-
tion and judicialization of “modern life” (Hirschl 2006), which
entails the spread of legal procedures into social and political
spheres and an expansion of the role of courts and judges in
In the U.S., much of administrative review is vested in public authorities and inde-
pendent agencies, often described as administrative tribunals (Cane 2010; Amaral-Garcia
2015a). For the English case, see Sterett (1997).
Additionally, civil law tradition countries can also have the Constitutional Courts
adjudicating cases involving the state. Generally speaking, administrative courts adjudi-
cate primarily cases related to the executive function of the state, and constitutional
courts adjudicate cases related to the legislative, judicial, and executive functions
(Amaral-Garcia 2015a). This is the case in Spain.
There is a long debate on legal origins that suggests that common law countries
are more efficient than civil law countries (i.e., that the common law system is more con-
ducive to economic growth than the civil law system). See, for example, Mahoney (2001)
and LaPorta et al. (2008). For a critique of this hypothesis, see Garoupa and Gomez-
Liguerre (2011). Cross and Donelson (2010) focus on the quality of the court system,
finding a negative correlation between common law and the quality of courts in Europe.
388 Medical Malpractice Appeals in a Civil Law System

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT