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Medical law

Medical law

In the recent time we have witnessed more frequent complications occurring during the provision of healthcare being of such a serious character that they result in health injury to the patient. In this regard it is necessary to emphasize that each individual who has suffered physical, moral or mental harm caused by the treatment during the provision of healthcare is entitled to an adequate compensation in a reasonable period of time.

In case the medical personnel breach their duty it is necessary to thoroughly review the process of healthcare provision, mainly with respect to its compliance with the legal regulations governing issues of medical law. Due to this reason it is appropriate to contact a lawyer even in cases of suspicion of a breach of duty who will assess the facts, determine whether the rights of the patient have been infringed, specify what kind of liability for breach of duty is to be applied in a particular case and finally define potential claims of the aggrieved patient.

Our law firm has noticed an increasing interest of the patients in claiming their rights through litigation as well as out-of-court settlement. Since the respective field of law is rather new and it is difficult for the patient to get acquainted with it without any professional help, it is advisable for him/her to be represented by a qualified lawyer. This is necessary mainly in order to prevent improper interpretation of the relevant situation as well as to avoid unnecessary procedural errors. Except for the representation of the patient in court proceedings our law firm focuses on the provision of other legal services connected therewith such as representation vis-a-vis insurance companies, reimbursement in case of occupational injury and representation at the Healthcare Surveillance Authority.

Each person is, in general, entitled to a healthcare provision which is in accordance with the legal regulations valid in the Slovak Republic and the current state of the medical science.

Within the provision of healthcare each individual is especially entitled to:

  • the protection of one’s dignity, physical and mental integrity,
  • be informed about his/her health condition,
  • be informed about the purpose, nature, impact and risk of healthcare provision, the options of the proposed procedures and about the risks of rejecting healthcare (with the exception of cases where healthcare may be provided even without an informed approval),
  • reject the removal and transfer of organs, tissues or cells after death,
  • confidentiality with respect to information regarding one’s health condition, the circumstances relating to the health condition unless the medical worker has been released of this obligation,
  • mitigation of suffering,
  • humane, ethical and dignified approach of medical workers,
  • appropriate quality of healthcare.

Breach of Duty during the Provision of Healthcare

Pursuant to s. 4(3) of the Act No. 576/2004 Coll. on healthcare and healthcare-related services as amended the healthcare is provided correctly if all medical acts necessary for a correct determination of the disease are carried out without undue delay and an effective treatment aimed at recovery of a person or improvement of the health deterioration of a person is provided with respect to the current state of medical science.

Frequently asked questions

The applicant in the proceeding for damages caused in connection with the health injury is exempt from the
court fees. Therefore, the applicant will not be obliged to pay the court fees in case he/she claims reimbursement
for pain and suffering, loss of amenity and compensation for pecuniary damages defined in the s. 445 et seq.
of the Civil Code.

As to the proceeding on reimbursement of the non-pecuniary loss (i.e. damages consisting in wrongful interference
with personality rights) it should be mentioned that this proceeding is not exempt from the court fees. Therefore,
the applicant has to pay the court fee in the amount of EUR 66 and 3% of the value of this respective claim.

Claim for damages (as well as compensation for non-pecuniary loss) may be submitted against the health-care
institution in which the healthcare was provided to the injured patient and not against the particular doctor who
has personally caused damage to the patient. The damages may be claimed directly against the particular doctor
only in case he/she runs a private practise.

It should also be mentioned that the statute of limitations, i.e. the periods within which the claim for damages and
compensation for non-pecuniary loss should be claimed, differ. The right of the patient to claim damages has to be
filed within the 2-year statute of limitations, whereby it begins on the day the injured patient has found out or could
have found out about existence of the damage and who is responsible for its indemnification. The right to claim
non-pecuniary loss on the other hand lapses within the 3-year statute of limitations which begins on the day the
rights of the injured patient have been infringed.

It should be pointed out that it is extremely important to claim the damages within the above stipulated periods,
since in case they are missed, the claims will become judicially unenforceable. This means that in case of a
potential lawsuit, the opposing party (i.e. the respective health-care institution or private practise doctor) will be
entitled to raise an objection of limitation as a result of which the court will not be allowed to reimburse the patient
for the damages that he suffered as a consequence of the wrongful provision of healthcare.

For the sake of completeness it should be noted that although the expiration of the statute of limitations of the
relevant claim causes its judicial unenforceability, the opposing party will still be entitled to reimburse the injured
patient for the damages on a voluntary basis. However, this decision will always depend only on the good will of
the respective health-care institution or private practise doctor and therefore we do not recommend relying on this
possibility.

To conclude, after the expiration of the statute of limitations the chances of the injured patient to be successful in
the court proceeding are very low; therefore we repeatedly underline that in order to achieve success in the
proceeding, the respective claims should be filed within the above mentioned time periods.

An incorrectly provided healthcare can cause (besides the injury to the patient) also a wrongful interference with his
personality rights (e.g. the right to privacy, human dignity and the protection of private life). In such case, the Civil Code
grants the patient the right to claim:

  • a cease and desist with the wrongful interference
  • the elimination of consequences of such interference and
  • an adequate satisfaction.

The adequate satisfaction has primarily the form of a moral (non-monetary) satisfaction. Only in case if such moderation
of the negative consequences of the wrongful interference would be insufficient, the respective patient has the right for
compensation in monetary form. It should be pointed out that the amount of such compensation is not specified; it is
determined by the court according to the gravity and circumstances of the interference to the personality rights.

The patient who suffered damage or injury as a consequence of the wrongful provision of healthcare service
is according to the Civil Code entitled to assert different rights. Depending on whether the detriment was caused
in the material or immaterial sphere the injured patient may claim:
compensation for non-pecuniary loss, which includes reimbursement for pain and suffering as well as loss of
amenity of the injured patient and compensation for pecuniary loss, which includes reimbursement for loss of
earnings and loss of pension, lump-sum compensation, reimbursement for treatment expenses, survivorship
annuity and reimbursement for funeral expenses.

If the patient thinks he suffered damage or injury as a consequence of incorrect provision of healthcare services,
there are several options how he can proceed. The injured patient has the choice to claim his rights in (i) a civil
proceeding
or (ii) a criminal proceeding.

In the civil proceeding the injured patient can assert his right to damages which have been caused by the wrongful
provision of healthcare. It should be mentioned that the success in the respective proceeding depends on the ability
to bear the burden of proof and demonstrate in front of the court the following conditions of liability for damages:

  • provision of healthcarenon lege artis, i.e. in contradiction to the law;
  • injury (damage to health);
  • causality between the provision of healthcare and the injury;
  • in some cases also the fault of the medical worker (intent or negligence) depending on the specific circumstances.

As already mentioned above, the injured patient may also decide to file a criminal complaint with the respective
authorities. As opposed to civil proceeding (which has a reparatory character), the aim of the criminal proceeding is
to punish the wrongdoer for the criminal offence.

It should also be mentioned that the injured patient may file a submission to the Healthcare Surveillance Authority
(hereinafter “HSA”) and ask for a free review of the procedure conducted by the medical worker or the personnel.
The HSA will inspect the relevant matter and determine whether the healthcare has been provided lege artis, i.e.
according to the law. If the HSA finds that the healthcare was not provided in accordance with the law, it can award
a sanction to the respective medical worker. It has to be pointed out that the HSA does not consider the causality
between the incorrect provision of healthcare and the injury. Therefore, a favourable decision of the HSA does not
guarantee a success at the court. On the other hand, if the HSA determines the healthcare has been provided
correctly, this does not bar the patient from claiming his rights at the court or file a criminal complaint.