How is compensation determined for medical malpractice?

In its decision from early February 2020, the Supreme Court of Cassation ("„VKS“") once again brought clarity to the concept of "fairness" when determining compensation for non-pecuniary damages from a tort - in this case, medical error (the so-called medical tort).

What are the specific facts of the case?

A patient is admitted to a metropolitan medical center with complaints of a chalazion. This is an eye disease similar to a stye. Both diseases are characterized by a low health risk and their treatment is rather mild and routine.

At the start of the planned surgery, as a result of the doctor's actions when injecting local anesthetic, the patient suffered physical injuries - temporary impairment of the visual function of the eye. The medical intervention after the injuries occurred was interrupted and not completed.

The doctor's fault was manifested in the form of negligence, which could have been avoided if due care had been exercised. It is accepted that the actions performed do not correspond to the methods of treatment of eye diseases approved by medical science and practice and the medical standards in the field of ophthalmology.

It was established through medical expertise that the doctor did not exercise due care, that he did not do everything necessary to prevent his patient from being harmed in accordance with the necessary knowledge and skills that any conscientious doctor in his position should possess. It is irrelevant in this case that informed consent was obtained from the patient.

Who is responsible for the damages caused in such a case of medical error?

The claim for non-pecuniary damages is directed simultaneously against:

• The doctor who performed the operation (as the direct perpetrator of the tort);
• The hospital where the doctor worked (as the assignor of the work).

In this and other similar cases, the doctor and his employer are jointly and severally liable. This means that the injured party can seek full compensation from either of them. However, payment by one of them releases the other.

How is compensation determined?

The court determines the compensation for non-pecuniary damages suffered (pain, suffering, etc.) in an equitable manner. The concept of "justice"„ is assessed by the court for each legal case, taking into account the specific facts and circumstances of the case. When this principle is violated, this has an impact on the conclusions about the monetary equivalent necessary to compensate the injured party for the non-pecuniary damage suffered by him. 

In this case, in order to determine the compensation of 10,000 leva for the non-pecuniary damages suffered by the patient due to medical error, the court took into account:

If you have suffered damages due to medical malpractice, our team can provide you with a consultation to advise you on whether your claim is justified. The consultation may be free of charge if the lawyer determines that the legal prerequisites for this are met. According to the Law for the bar, the lawyer may provide free legal assistance and assistance to: persons entitled to maintenance; persons in financial difficulty; relatives, close friends or another lawyer.

If you wish to protect your rights, we can represent you in both criminal (since medical malpractice can also be a crime) and civil proceedings.

What is the order of claiming?

1. We attempt to resolve the dispute amicably – we hold a meeting with the responsible person/company, where we try to negotiate the best terms for you. After your approval of the parameters of this agreement, we can proceed to signing it.

2. In case the dispute cannot be resolved, we will voluntarily file a civil lawsuit to claim the compensation due to you for the medical error. In addition to not owing us any fee in advance, we will also do everything possible to exempt you from paying court fees and expenses, if the prerequisites for this, as provided for by law, are present.

3. If there is a criminal case initiated in connection with the tort, we can also represent you in it. In this case, we can bring the claims that would otherwise be the subject of the initiated civil case referred to in point 2.

4. If the case/cases are successful, we file an enforcement case and represent you before a private bailiff, who will assist you in receiving the actual amount awarded by the court decision - through seizure of bank accounts or other appropriate actions.