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.
As to the breach of duty during the provision of healthcare, generally, there are two basic types of errors made by medical personnel:
- Non Lege Artis
The term refers to a procedure in contradiction with the current state of medical science determined by the extent of education at the faculties of medicine, content of expert medical press as well as expert medical conventions. Procedures conducted by medical personnel which are non lege artis may occur during diagnosing a disease as well as by the choice of therapy of the patient (e.g. breach of duty due to insufficient knowledge of the doctor, incorrectly chosen treatment, etc.)
- Vitium Artis
The respective term refers to a breach of duty which occurs despite the thorough care and attention of the medical worker who possesses the required knowledge of medical science. This kind of breach is for example a single random failure of an otherwise skillful surgeon. However, under these circumstances the liability of the doctor is not as serious as in cases non lege artis.
Right to Damages
In case the patient believes the healthcare has not been provided properly or other decision of the attending medical worker in regard to healthcare or healthcare-related services has not been correct he has the right to request a remedy from the provider of healthcare; the request must be in writing.
The provider of the healthcare is obliged to notify the applicant in writing on the manner of the accommodation of the request not later than 30 days from its filing, provided the content of the request does not require immediate action or action within a shorter period of time.
If the provider does not comply with the request or does not notify the applicant on the fulfillment of the request within 30 days from its filing, the applicant is entitled to ask the Healthcare Surveillance Authority to perform monitoring according to a special regulation (under the condition that the subject of the request is the proper provision of healthcare).
With respect to the fact that the Healthcare Surveillance Authority itself does not deal with the right to claim damages, it is necessary to contact an attorney and file an action with the competent court which shall decide in accordance with the valid laws of the Slovak Republic.
Depending on whether the detriment was caused in the material or immaterial sphere of the aggrieved party, it may be divided as follows:
- pecuniary (financial) loss, which includes reimbursement for pain and suffering as well as loss of amenity of the aggrieved party,
- non-pecuniary (moral) loss, which includes reimbursement for an unlawful interference with the right to life of an individual (compensation for the death of a close person claimed by the surviving relatives).
Basic Conditions for the Right to Claim Damages
In order to establish legal liability of the medical worker for infringement of the patients’ rights within the provision of healthcare and the right to claim damages the following conditions have to be cumulatively met:
- unlawful conduct or omission of the medical worker causing a breach of statutory duty,
- causal link between the unlawful conduct or omission and the damage or injury of a patient,
- fault of the medical worker (intent or negligence).
In case all the respective conditions are fulfilled the patient or his/her close relatives are entitled to claim damages from the provider of healthcare by filing an action for damages with the respective court which is exempt from court fees.