De aansprakelijkheid voor ongeschikte medische hulpzaken

Medical devices are essential to the treatment of patients. At the same time, they can contain health risks and cause injury. This thesis focuses on the liability of the healthcare provider for the use of medical devices. In the Netherlands, liability of the healthcare provider for the use of medical devices is governed by article 6:74 jo. article 6:77 of the Dutch Civil Code. Article 6:77 contains a general rule of strict liability for the use of devices, but also provides for an exception. Under the general rule, if the debtor makes use of a device which is unfit for the performance of the contract, the resulting non-performance can be attributed to him. On the basis of the exception, the non-performance cannot be attributed to the debtor if this would be unreasonable. Due to different approaches to the interpretation of this rule in the medical context, it is unclear whether the liability of the healthcare provider in the Netherlands is strict or fault-based. To answer whether the healthcare provider should be liable for the use of medical devices and whether this rule should be strict or fault-based, research is done into Dutch, German, French and English law. Also, the question has been approached from a law and economics perspective. The research has shown that a strict liability rule should apply to the healthcare provider who has caused damage by using a medical device in the performance of an obligation.

Dissertation: http://hdl.handle.net/11370/439bbd71-75e8-4973-9df5-02b94a6e32a4