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Medical Malpractice
What is medical malpractice?
Medical malpractice is an improper or negligent act carried out by a medical specialist or healthcare staff during the provision of healthcare to patients. This may include errors in diagnosis, treatment, prescribing medication, surgical procedures, or monitoring patients. Medical errors may have serious consequences for the health and quality of life of patients, including injuries, additional illnesses, disability, or even death.
How serious a problem are medical errors?
Data from a recent study by Johns Hopkins University in the United States shows the alarming statistic that more than 250,000 people in the country die every year from medical errors, thus making improper treatment and medical omissions the third most frequent cause of death after heart disease and cancer. On a global scale, the costs associated with treatment errors are estimated at nearly EUR 38 billion annually. Aggregated statistical data shows that 5% of all patients admitted to hospital encounter a treatment error, and that on average each hospital has one treatment error every 23 hours or every 20 admissions.
Am I entitled to compensation for damages caused in the event of medical malpractice or neglect by medical staff?
It is the right of every patient to have access to the best practices in medicine. It is the duty of medical institutions and their staff to provide the necessary assistance, observing the relevant standards of service and taking into account the needs of their patients. If these rights are violated and, as a result, a patient suffers damage to their health, they may seek compensation for non-pecuniary damages.
Who is liable for the damages in the event of medical malpractice?
For non-pecuniary damages, claims may be brought simultaneously against:
- The doctor (as the direct perpetrator of the tort);
- The hospital where the doctor worked (as the assignor of the work).
This means that the injured person may seek the full compensation due entirely from either one of the two. Payment by one of them, however, releases the other.
How is the compensation determined?
The court determines the compensation for the suffered non-pecuniary damages (pain, suffering, etc.) according to equity. The concept of “equity” is assessed by the court in each individual court case, taking into account the specific facts and circumstances of that case. When this principle is violated, it affects the conclusions regarding the monetary equivalent necessary to compensate the injured person for the non-pecuniary damages they have suffered.
What is important to know about liability in case of medical malpractice?
Doctors may be subject to several different types of liability – criminal, administrative, and civil.
01. Criminal liability
Provided for the most serious violations, which are expressly listed in the Criminal Code – causing the death of another person due to negligent performance of medical duties, performing an abortion by a doctor in contradiction with the approved medical standards, or a doctor’s refusal to help a person in need without a valid reason.
02. Administrative liability
It consists of sanctions imposed within the healthcare system by a competent authority provided for by law: reprimand, fine, deprivation of medical rights, and disciplinary punishments such as remark, warning of dismissal, or disciplinary dismissal.
03. Civil liability
Medical malpractice is the mechanism through which the injured person may obtain compensation for the unlawful actions of the doctor. Civil liability may be contractual or tortious.
04. Contractual liability
It covers the caused non-material damages (pain, suffering, fear, stress, loss of trust), while under tort liability, compensation is also due for them.
How is this liability enforced?
The enforcement of all three types of liability may take place either by referring the matter to the court or the prosecution office, for engaging civil and criminal liability, or to one of the bodies that have the right to supervise compliance with healthcare legislation, such as the Executive Agency Medical Supervision and the Regional Health Centres.
In order to establish whether the doctor will bear contractual or tort liability, it is important to consider whether the patient has given their informed consent for the performance of the given harmful act by the doctor.
Where such consent exists, the patient is not entitled to receive compensation for the non-pecuniary damages suffered from medical malpractice. Conversely, if the doctor acted without the consent of the patient or without ensuring that their action would not harm the patient, and thereby caused damage to the treated person, the patient is entitled to compensation not only for the incurred expenses, but also for all pain, suffering, and discomfort suffered, including lost profits.
The tort liability of the doctor is established on the basis of the caused damages and their causal link to the doctor’s actions. In addition to this, two legally relevant facts must be established: what exactly were the actions or omissions undertaken by the doctor, and whether they comply with the established medical standards.
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