A Comparative Study of the Standard of Negligence in Civil Medical Malpractice Litigation in Thailand and the USA

Abstract

The problem of medical malpractice litigation has become increasingly important in Thailand. Defendant-doctors may potentially face criminal and civil liability, and a large sum of damages. In civil cases, claimant-patients commonly rely on Section 420 of the Civil and Commercial Code for the compensation for injury caused by the alleged negligent act of the defendant-doctor. This research conducts a comparative study of Thai law in this area, based on the analysis of Section 420, and the standard of care in tort of negligence in the USA.

The comparative study reveals differences in the components of liability for negligence, factors of considerations and standards in determining whether an act was a negligent act. If Thailand is to improve the law in this area, it is recommended that Thailand considers, firstly, the distinction between generalist and specialist doctors, as adopted in the majority of the states in the USA, whereby specialist doctors are held to a higher standard of care than generalist doctors. On the contrary, generalist doctors should not be held to the standard of specialist doctors unless he voluntarily performs specialised medical treatments. Moreover, in determining whether an act of the defendant-doctor is negligent, causing injury to the patient, Thailand should consider the approach in the USA, which gives appropriate weight to the particular circumstances of the case, and which has adopted evidentiary rules regarding expert witness testimony. The main strength of such approach is to ensure the reliability of expert witness testimony in order to maintain a suitable standard in the determination of civil liability in medical malpractice context.