Incorrect provision of healthcare – FAQ
What is the process a patient should follow in case he suffered injury as a consequence of incorrect provision of healthcare services?
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 a (i) civil proceeding or (ii) 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 healthcare non 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 to claim his rights at the court or file a criminal complaint.
What does the claim for reimbursement of damage consist of?
Depending on whether the detriment was caused in the material or immaterial sphere of the aggrieved party, it may be divided as follows:
- non-pecuniary (immaterial) loss, which includes reimbursement for pain and suffering as well as loss of amenity of the aggrieved party,
- pecuniary (financial) loss, which includes reimbursement for loss of earnings, for loss of pension, one-time compensation, reasonable costs associated with medical treatment, reasonable costs associated with the funeral and he survivor’s cash pension.
Can the injured patient claim other rights besides the damages?
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.
Against whom and in what period the claim for damages may be filed?
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.
Is the proceeding for damages exempt from court fees, if not, what is the sum of the fees?
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.