Abstract

This article examines the case for restitutionary-based strict liability towards patients who were injured from risks that were unforeseeable at the time of treatment: involuntarily, the patient has advanced knowledge that will prevent harm to future patients. This situation is analogous to necessitous interventions so it is fair to compensate the patient for the costs she incurred in providing this benefit. The argument is based on both an emerging consensus by English restitution scholars about the appropriate scope of a common law necessity doctrine and a comparative approach of the civilian concept of negotiorum gestio and the hybrid Israeli solution to this issue. The fact that the service was not rendered with the intention to benefit potential alternative victims is not a bar for recovery, since the intervention was both successful, ex post, and cost-justified (and hence reasonable) ex ante. Crucially, an obligation to compensate the claimant conforms to the alternative victim’s hypothetical wishes and preserves his autonomy, as it reflects incontrovertible benefit. Since the alternative victim is unidentifiable, and since imposing on him alone the financial burden to compensate the victim for her personal injury might be oppressive, an acceptable solution would be to impose the obligation on the treating physician who can spread this cost – to varying extent depending on how the health care system is funded – amongst potential victims who benefit from the advancement of medical knowledge, which is the necessary by-product of the claimant’s injury. This restitutionary rationale bears resemblance to two theories justifying strict liability (while differing from the third, efficiency rationale): fairness and ex-post negligence. The analogy to necessitous interventions provides justification that is both narrower, and more convincing, than the two competing justifications for compensating the victim injured from unforeseeable risks which advance medical knowledge.