Liability for Negligent Healthcare Clinical Risk Management in the United States and Germany

Systems-focused error prevention efforts are internationally recognized in the healthcare industry, and industry efforts to identify and correct organizational defects through the process of CRM are well established in the U.S. and Germany. However, in both countries, there is no clear corresponding liability for healthcare organizations who fail to engage in systems-based learning through the process of clinical risk management (CRM). Although both jurisdictions do recognize organization-based theories of liability, liability for negligent CRM has not been explicitly recognized by courts in either jurisdiction to date. German legal scholars, recognizing this gap in liability for healthcare organizations, have written in support of finding liability for negligent CRM under existing tort law; however, there is no corresponding discussion in the American legal literature. This dissertation fills that gap with a comparative analysis of medical negligence law in the U.S. and Germany through the international lens of modern medical error prevention science and policy to articulate a legal basis and sketch the evidentiary framework for tort liability based on negligent CRM.