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

• Published date: 01 June 2019
• DOI: http://doi.org/10.1111/lasr.12398
• Date: 01 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

treated.

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

´z-

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; sofia.amaralgarcia@uhasselt.be.

Law & Society Review, Volume 53, Number 2 (2019): 386–419

©2019 Law and Society Association. All rights reserved.

386

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

1

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

2

(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

3

(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

1

For more on the Spanish legal system in medical malpractice cases, see Ferrara

et al. (2013), Koch (2011), Arroyo and Ya

´gu

¨ez (2013), Martin-Casals et al. (2003),

Amaral-Garcia (2015b), Amaral-Garcia and Garoupa (2015) and Amaral-Garcia (2017).

2

Although the issue of specialized administrative lawmaking has received some

attention in the U.S., the institutional arrangements are remarkably different.

3

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).

4

This separation of jurisdictions

5

has led some scholars to con-

sider it as an example of inefficiency in legal governance in civil

law tradition countries.

6

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

4

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).

5

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.

6

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