Ingo Rohlfing

Recently, [Frontal
21](http://frontal21.zdf.de/ZDFde/inhalt/1/0,1872,1001633,00.html?dr=1 "Frontal 21"){target="_blank"}
-- a German newscast -- reported about the handling of error in
treatments under German health care law (about which I am not an
expert). A lawyer specializing in health care law explained that it is
very difficult to win lawsuits against medical doctors (MD's) because
the patient claiming to experience treatment error has to substantiate
this claim (except for grave treatment error). Particularly problematic
are cases where patients die due to treatment error and the patient
suffered from a disease that would cause death if left untreated. MD's
charged of treatment error argue that the patient would have died anyway
and that the alleged error is not causal for the patient's death.
According to the report, this interpretation is supported by German
health care law, meaning that lawsuits have little chance of successful
litigation.

This handling of treatment errors touches on two prominent issues from
the philosophy of science: *overdetermined events* and *contrasts* or
*counterfactuals*. On the first point, the question is: what is the
cause when two events can bring about the outcome at the same or
different points in time? An example from the philosophy of science
literature takes the assassination of a person as the outcome (e.g.,
Sartorio, Carolina (2005): Causes as Difference-Makers. Philosophical
Studies 123: 71-96). Imagine two assassins operate independently. One
assassin opts for poisoning, while the other opts for a sniper assault.
The first assassin poisons the target, but before the target dies, the
second sniper shoots the individual (sometimes, you have stories like
this in movies or TV series like CSI). This is an instance of
overdetermining causes because the poison and the shooting alone would
have sufficed to kill the target.

Now, is the second assassin and the shooting the cause of the victim's
death? If one is prepared to infer causation from a chain of events -- a
mechanism, if you like -- the answer would be yes because the bullet
fired by the sniper terminates the target's life (e.g., Schaffer,
Jonathan (2003): Overdetermining Causes. Philosophical Studies 114
(1-2): 23-46). But it is less straightforward from a counterfactual
perspective because if the shooter had missed the target, the person
would nevertheless have died from the poison. In this naïve view, the
answer would be no. The question of what a cause is when one is
confronted with overdetermined causes is not settled by the philosophy
of science literature. Apparently, however, German health care law takes
a simple counterfactual view on causation because it denies error in
treatment as a cause of the patient's death if the patient suffered from
a deadly disease.

The second interesting aspect is the question of what the relevant
contrast or counterfactual is. Health care law compares the factual
world in which the patient died because of an error in treatment with a
counterfactual world in which the patient does not receive any treatment
and dies from the deadly disease. Personally, I was a little bit struck
by this because the patient receives treatment in order to be cured from
the disease. An alternative, at least equally plausible counterfactual
for the world in which error leads to death is one where no error is
committed and the patient is cured. This counterfactual would make it
easier to charge MD's with error, while the counterfactual that is made
in health care law favors the MD. I am not making any substantive plea
for either counterfactual here, but simply note the relevancy of topics
discussed in the philosophy of science for everyday life (or death, in
this case).


Recently, Frontal 21 – a German newscast – reported about the handling of error in treatments under German health care law (about which I am not an expert). A lawyer specializing in health care law explained that it is very difficult to win lawsuits against medical doctors (MD’s) because the patient claiming to experience treatment error has to substantiate this claim (except for grave treatment error). Particularly problematic are cases where

Error in medical treatment and causation in German health care law

The following is my contribution to a collection prepared by the British Library and released today at the Wellcome Trust, called â€œDriving UK Research. Is copyright a help or a hindrance?â€ which is being released under a CC-BY-NC license. The British Library kindly allowed authors to retain copyright on their contributions so I am here releasing the text into the public domain via a CCZero waiver.

Cameron Neylon

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*The following is my contribution to a collection prepared by the
British Library and released today at the Wellcome Trust, called
â€œDriving UK Research. Is copyright a help or a hindrance?â€?Â 
-Â [Press
Release](http://www.bl.uk/news/2010/pressrelease20100722.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+BritishLibraryPressReleases+(British+Library+Press+Releases)&utm_content=FriendFeed+Bot)
â€" [Document](http://www.bl.uk/ip/pdf/drivingukresearch.pdf)\[pdf\] --
which is being released under a CC-BY-NC license. The British Library
kindly allowed authors to retain copyright on their contributions so I
am here releasing the text into the public domain via a CCZero waiver. I
would also like to acknowledge the contribution of Chris Morrison in
editing and improving the piece.*

If I want to be confident that this text will be used to its full extent
Â I am going to have to republish it separately to this collection. Not
because the collection uses Â restrictive rights management or licences,
it actually uses a relatively liberal copyright licence. No, the problem
is copyright itself and the way it interacts with how we create
knowledge in the 21^st^ century.

Until recently we would use texts or data by reading, taking notes,
making photocopies, and then writing down new insights. We would refer
to the originals by citing them. A person making limited copies or
taking notes (perhaps quoting the text) does not breach copyright
because of the notion of â€œfair dealingâ€?. Making copies of reasonable
portions of a work is explicitly not a violation of copyright. If it
were we wouldnâ€™t be able to do any useful work at all.

Today, scholarship and research cannot effectively proceed via manual
human processes. There is simply too much for us to handle. On the other
hand we have excellent computer systems that can, to some extent at
least, take these notes for us. Automated assistants that can read the
text for us, that can do text mining, data aggregation and indexing
allowing us to cope with the volume of information. As these tools
improve we have an opportunity to radically increase the speed of the
innovation cycle, using the human brain for what it is best at: insight
and creative thinking; and using machines for what they are best at:
indexing, checking, collecting.

The problem is that to do this those machines need to take a copy of the
*whole* of the text and in doing so they trigger copyright. Even though
the collection you are reading is released under a Creative Commons
licence that allows non-commercial use, no-one can take a copy, find an
interesting sentence, and then index it if they are going to make money.
Google are not allowed to check what is here and index it for us.

Or perhaps they are. Perhaps this does come under â€œfair useâ€? in the
US. Or maybe it does, but not in the UK. What about Australia? Or
Brazil? All with slightly different copyright law and a slightly
different relationship between copyright and contract law. Even if
current legal opinion says it is allowed a future court case could
change that. The only way *I* can be sure that my text is available into
the future is to give up the copyright altogether.

To build effectively on the scientific and cultural data being generated
today we need computers. If a human were doing the job it would clearly
be covered by fair dealing. What we need is a clear and explicit
statement that machine based analysis for the purpose of indexing,
mining, or collecting references is a fair dealing exception, even where
a full copy is taken. There clearly need to be boundaries. The entire
work should not be kept or distributed. As with existing fair dealing we
could have guidelines on amounts kept or quoted: perhaps no more than 5%
of a work. These could easily be developed and be compatible with
existing fair dealing guidance.

We risk stifling the development of new tools, both commercial and
academic, and new knowledge under the weight of a legal regime that was
designed to cope with the printing press. At the same time a simple
statement that this kind of analysis is fair dealing will provide
certainty without damaging the interests of copyright holders or
complicating copyright law. These new uses will ultimately bring more
traffic, and perhaps more customers, to the primary documents. By taking
the simple and easy step of making automated analysis an allowable fair
dealing exception everyone wins.

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<em>
 The following is my contribution to a collection prepared by the British Library and released today at the Wellcome Trust, called â€œDriving UK Research. Is copyright a help or a hindrance?â€?Â  -Â Press Release â€“ Document[pdf] – which is being released under a CC-BY-NC license.
</em>

Messaggi di Rogue Scholar

Error in medical treatment and causation in German health care law

Driving UK Research – Is copyright a help or a hindrance?