Published by Maastricht University Press as an open-access research paper
This author’s version (preprint) is published in the Maastricht LAW Research Paper Series. It is freely available for download or online reading.
- Series: Maastricht LAW Research Paper Series
- Institution: Faculty of Law | Maastricht University
Research Paper details
DOI
https://doi.org/10.26481/mup.law.rps.2602
Publication date (online)
05-03-2026
Copyright and license
© 2026 The Authors & Maastricht University – The content of this work is licensed under a CC BY 4.0 International License.
Abstract
This paper analyses how limited healthcare resources should affect medical liability. This has become a significant intellectual question in the debate on how to construct an efficient medical liability system. The question has, moreover, received considerable attention as healthcare systems face increasing pressure from budget constraints. This was especially the case during the COVID-19 period.
In the paper, an economic perspective is used to address this fundamentally normative question, namely, how the law should deal with the limited availability of resources in medical liability law. The paper argues that resource allocation decisions should not be made by individual healthcare providers “at the bedside ” but require collective decision-making at multiple societal levels.
The paper also argues in favour of multi-stakeholder agreements resulting in clear guidelines, which are the most appropriate mechanism for determining how resources should be allocated. Finally, the paper also argues in favour of a negligence rule with a reversed burden of proof. This is, so it is argued, preferable to strict liability in the context of limited resources. In sum, the paper argues that the legal system, and more particularly the development of medical malpractice law, should take into account the limited availability of financial resources in shaping the medical liability regime.
Publication details and metadata
Title
Medical liability under limited resources: A law and economics perspective
Series
Maastricht LAW Research Paper Series
Institution
Faculty of Law | Maastricht University
Authors
M.G. Faure (ORCID) – Maastricht University, The Netherlands (ROR)
Louis Visscher (ORCID) – Erasmus University Rotterdam, The Netherlands
DOI (digital version)
https://doi.org/10.26481/mup.law.rps.2602
Copyright and licensing
© 2026 The Authors & Maastricht University – CC BY
The content of this work is licensed under a Creative Commons BY 4.0 International License.
Access to this publication
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Publication Type and Language
Research Paper – English
Publication date (first online)
5 March 2026
Subject
Tort Law and Product Liability, Environmental, Health, and Safety Law
Keywords
medical liability, limited resources, Covid19, Coase theorem, strict liability, negligence
Citation for this work
Faure, M. G., & Visscher, L. (2026). Medical liability under limited resources: A law and economics perspective. (pp. 1-26). Maastricht University Press. Maastricht LAW Research Paper Series Vol. 2026 No. 02 https://doi.org/10.26481/mup.law.rps.2602
Final Published Version (preferred citation)
This author’s version is published in the Maastricht LAW Research Paper Series. The final version of record is available as:
Faure, M. G., & Visscher, L. (2026). Medical liability under limited resources: A law and economics perspective. Medical Law International, 1-22. Advance online publication. https://doi.org/10.1177/09685332261425192
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