Designing Factfinding for Cross-Border Healthcare, Vern R. Walker. In Opinio Juris in Comparatione, Vol. 3, Paper n. 1, pp. 1-40 (2009). Copy of full text available for download in .pdf format.
A critical problem in providing appropriate compensation for medical accidents in the context of cross-border healthcare is designing and supervising the factfinding 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 factfinding, particularly in an area as factually complex as medical-accident compensation. This paper discusses a framework for producing such factfinding without creating a centralized factfinding 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 factfinding 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.