Document Type

Article

Publication Title

Opinio Juris in Comparatione

Publication Date

2009

Abstract

A critical problem in providing appropriate compensation for medical accidents in the context of cross-border healthcare is designing and supervising the fact-finding processes. Numerous compensation systems in multiple jurisdictions, handling a high volume of cases, must be able to achieve outcome efficiency (neither under-compensating nor over-compensating victims), while also achieving administrative efficiency (low transaction costs). It is impossible to achieve these goals without consistent, accurate, evidence-based fact-finding, particularly in an area as factually complex as medical-accident compensation. This paper discusses a framework for producing such fact-finding without creating a centralized fact-finding institution, and provides examples of general principles, institutional structures, and specific types of legal rules for evidence assessment. It illustrates aspects of this framework using the National Vaccine Injury Compensation Program in the United States. Both the structure of that Program and the cases decided under it provide insights on how fact-finding can be transparent, evidence-based, and coordinated, as well as (presumably) accurate, so that all potentially affected parties can be confident that the compensation system is achieving its goals.

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