Liability systems have sometimes been called “luxury systems” for the “unhappy few”. In fact, the unhappy few claiming from this system are of statistical insignificance by any measure. Children and their families successfully claiming from the State are outnumbered by far by those with genetic defects, lasting disabilities by prenatal disease or postnatal injury for which no one can be held liable.

In my opinion, what sets the statistically insignificant apart from the masses is the preventability of the injuries sustained. Therefore, liability systems can only be justified by the ulterior aim of reducing the number of medical malpractice incidents. If the liability system does a poor job on error reduction, we should work at improving the system. If we ultimately are convinced that other mechanisms (criminal law or disciplinary rules) provide superior incentives for prevention, then society might consider abandoning a liability system in favour of a system that is merely aiming for compensation.

With regard to compensation as a function of liability systems, the quest for alternative compensation systems in the area of medical malpractice birth injuries also raises the key question of whether we want to redistribute the proceeds of the current system over other – and presumably: more – beneficiaries. Choosing a system that compensates all children with birth defects (and their families), irrespective of whether caused by nature or by man, may sound appealing if we have notions like distributive justice, social solidarity and equal opportunities in mind. Such a broad scheme would go a long way in alleviating the burden of the stricken families and providing coverage for an adversity they could not insure against before the event.

In some countries these notions are more popular than in others, but in any event a no-fault compensation scheme in itself does not help to prevent and reduce the incidence of medical malpractice birth injuries. Therefore, government accountability, evaluation of what went wrong, and the compulsion to learn from mistakes, are pivotal to any system. If the liability system does not efficiently provide those features, but merely allows lawyers to earn from mistakes, then we should start out with amending the liability system as it stands.

In short: considering alternatives for liability should also be the moment to raise the question whether enough is being done to prevent the injury from happening and, if not, what else can be done to avoid injury? Compensating injury that could be avoided at lower cost for society is always a second-best solution.

Professor Willem H. Van Boom Leiden University