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Reducing the number of preventable adverse events has become a public health issue. The paper discusses in which ways the law can contribute to that goal, especially by encouraging a culture of safety among healthcare professionals. It assesses the need or the usefulness to pass so-called disclosure laws and apology laws, to adopt mandatory but strictly confidential Critical Incidents Reporting Systems in hospitals, to change the fault-based system of medical liability or to amend the rules on criminal liability. The paper eventually calls for adding the law to the present agenda of patient safety.Significance for public healthThe extent of preventable adverse events and the correlative need to improve patient safety are recognized today as a public health issue. In order to lower the toll associated with preventable adverse events, the former culture of professionalism (based on the premise that a good physician doesn’t make mistakes) must be replaced by a culture of safety, which requires a multi-pronged approach that includes all the main stakeholders within the healthcare system. A number of legal reforms could help in prompting such a change. This contribution stresses the need to include legal aspects when trying to find appropriate responses to public health issues.

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The paper explores the relationship between clinical guidelines and medical liability. In order to ascertain the standard of care required for example in ear surgery, courts rely on expert opinions and on existing clinical guidelines from medical societies. They assume that clinical guidelines express the reasonable standard of care that, when followed, insulates surgeons from liability. But judges keep the right to find that a set of clinical guidelines does not sufficiently protect the patient’s health interests. If in contrast clinical guidelines are overly cautious (e.g. by requiring a scientifically questionable examination), there is no incentive stemming from the legal rules on medical liability to deter surgeons from following the guidelines. However, a growing concern about health costs may in the future influence professional behaviour as much as fear of a malpractice suit today.

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