• Anna Malczewska

    legal counsel, Duraj Reck and Partners Law Firm

  • Daniel Reck

    Managing Partner

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25 July 2023

How to get compensation for a medical error?

Have you suffered bodily injury or health disorder as a result of a medical error? Or maybe your loved one died as a result of a medical error? In such situations, you may be able to seek compensation or another form of compensation – depending on the circumstances of the incident – from the hospital, doctor or their insurer. If you want to successfully claim medical malpractice, you need to prepare accordingly.

Medical records

First, prepare medical records from the facility where the medical error occurred. As a patient, you have every right to have your medical records made available to you. In addition, it may also be made available to the patient’s legal representative or a person authorized by the patient. After the death of the patient, the records can also be made available to a loved one, unless another loved one has objected.

At the request of an authorized person, the treatment entity is obliged to provide access to medical records. Remember that you can submit such a request in any form – written, oral or via electronic communication. A medical entity may not condition the release of medical records on the submission of a request form. Such special forms are intended only to facilitate the requester and streamline the process of requesting medical records, but they are absolutely not an obligatory form of request.

The release of medical records is made without undue delay, which in practice means that they should be made available as soon as possible. A copy of medical records issued for the first time is free of charge, for subsequent copies the treatment entity may charge fees. Be sure to ask for complete medical records – both individual (applies to a specific patient who is receiving health services) and aggregate (applies to patients in general or specific groups of patients receiving health services). For more information on types of medical records and how to keep them, see the
Regulation of the Minister of Health of April 6, 2020 on the types, scope and models of medical records and the manner of their processing.

If the provision of health services at the hospital where the error occurred was a continuation of treatment from another medical facility, or you were later transferred to another hospital, you must also have medical records from these facilities in this situation. This will allow you to examine all the circumstances of the case and determine whether the benefits were provided correctly or not, and whether there was a consequent injury.

The scope of the damage and its extent

As a consequence of providing medical services, you have suffered adverse effects on your personal, property or family situation. To get compensation for a medical error, think about what exactly your injury is. As a result of irregularities in the provision of health services, the extent of this damage can vary for each patient, so to make the process of claiming compensation easier for you, the following are examples of situations that affect what you can claim from the hospital.

You may require rehabilitation, which, after all, needs to be started as soon as possible to either reduce the extent of the injury you suffered or prevent it from getting worse. Most often, you have to pay for the help of a physiotherapist with your own money, because the waiting time for publicly funded rehabilitation (that is, reimbursed by the National Health Service) is several months, if not years, and you need to act quickly to improve your body. Count how much you spend on rehabilitation on a monthly basis and the frequency with which it is conducted.

Or maybe you found that after discharge from the hospital you require a special diet, eating organic products or other special foods? Do you have to take medications or dietary supplements on a regular basis that you didn’t have to do before? Summarize how much more you now have to spend on your food and how much you spend on drug treatment – this also falls under the scope of the damage you incur and can seek reimbursement.

Surely you still have to systematically use medical consultations that you didn’t have to use before? And they are probably private visits that you pay for out of your own pocket, because you would have to wait several months for a “National Health Service doctor,” and you need help now. Still this doctor orders several tests to be performed, which are also paid for. You pay for all this with your money and yet it is not your fault that you have suffered injury or disorder as a result of providing health services. You can claim reimbursement of these costs from the person responsible for your damage.

You’ve been injured by a medical error and can’t do your current job, or you need to retrain, which you don’t have the money for, or you’ve taken another job, but the salary you’re getting from it is lower than it was before the injury. This is also a damage that you can and should demand compensation from the perpetrator.

What else will you need for compensation?

It all depends on the circumstances of the case, as each such medical case should be treated on an individual basis. Most often, in addition to medical records, an inventory of the costs incurred following a medical error (as mentioned above) and any kind of bills, receipts or VAT invoices for proof are useful. In the court process, it is worth citing witnesseswho will confirm your injury, its scope and extent – these can be not only family members, but also neighbors or friends, members of the medical staff or even other patients (with whom you were lying in the same room in the hospital or waiting with you in the ED). It is also best to have up-to-date health certificates from an attending physician or physical therapist, along with information on the prognosis for the future. When traveling to medical appointments or medical facilities for diagnostics and treatment, it is also a good idea to prepare a list of such trips with the date and number of kilometers traveled. On the other hand, in the case of loss of earnings, you must prepare yourself documents that show the loss and its amount, such as a salary certificate.

Notification of damage and statute of limitations

The damage must be reported to the perpetrator, i.e. the entity responsible for the incident. As an injured patient, address your letter of claim to the hospital. Then it is worth reporting them to the hospital’s insurer. I would like to point out that every medical entity must have mandatory medical entity liability insurance. Liability insurance covers damages resulting from the provision of health services or the unlawful failure to provide health services. The hospital’s insurer is liable on a warranty/accessory basis, i.e. in addition to the hospital, meaning that you must first prove that it was the hospital that committed the medical error in order for the insurance company to be held liable for the event and claim compensation from it. In some cases, compensation can be claimed directly from the doctor. If you want to learn more about insurance for medical entities, I encourage you to read the following
Regulation of the Minister of Finance of April 29, 2019 on compulsory liability insurance of the entity performing medical activities.

The hospital may respond to your letter of claim on the merits and indicate which allegations and why they are unfounded, and thus not recognize the validity of your claim. More often than not, the hospital will refer you to its insurance company, so that it too will review your claim in a factual and objective manner. The insurer has a whole team of professionals, including external consultants – doctors, who have the appropriate expertise and professional experience to comprehensively and factually review your situation, medical records and claims made. According to the regulations, the insurance company has 30 days to take a position and issue a decision on the case. If this is not possible, the deadline is 90 days from the notification of the occurrence of the damage, of which you should be informed. Sometimes it is impossible to issue a decision within the above time limits, because the determination of liability or the amount of compensation may depend on pending criminal or civil proceedings.

If you are dissatisfied with the decision issued, you have the right to appeal the decision and present your arguments, refuting the insurer’s allegations presented in the decision. Sometimes the insurer will have to revise its position because the patient provides it with additional medical documentation. If, even on appeal, your claim was not found to be valid or you were undercompensated, you can file a lawsuit in court against the hospital, insurer and even the doctor.

The time limit for bringing an action is 3 years from the moment you learned or, with reasonable diligence, could have learned of the damage and the person obligated to repair it. If the damage is the consequence of a crime, the claim for damages is time-barred twenty years from the date of the crime, regardless of when the victim learned of the damage and the person obligated to compensate for it. In the case of minors – the statute of limitations for claims may not end earlier than two years after such a person reaches the age of majority.

Remember that the statute of limitations for a claim for benefits to an insurer is also interrupted by notification to the insurer of the claim or by notification of a covered event. The time limit runs anew from the date when the injured party received in writing the insurer’s statement of recognition or denial of the claim.

What can I – besides compensation – claim for a medical error?

Compensation is one form of compensation you can claim as a victim of medicalmalpractice. The term “compensation” is used colloquially for all forms of indemnity, so the following is a catalog of the types of claims you can make to a hospital, doctor or insurer before initiating a lawsuit or in a lawsuit. Remember, however, that not every medical error justifies the use of all these claims, the important thing here is to determine the extent of the damage.

  • Compensation for the damage suffered, which includes actual loss and lost benefits, for example: the cost of rehabilitation, the cost of buying medicines, the costs incurred for medical appointments, but also the cost of lost wages that the patient would have received if not for the damage caused by the medical error.
  • Payment in advance of the amount needed for the medical expenses of the victim of a medical error.
  • Payment of the sum needed for the costs of preparing for another profession, if the injured patient has become disabled and, as a result of the medical error, is unable to perform his previous gainful employment.
  • An annuity, when the injured patient has completely or partially lost the ability to work for a living – it is intended to compensate for the damage consisting in the inability to obtain from his own activity (including in the framework of an employment relationship, on the basis of civil law contracts, etc.) income as before the event, it is a benefit paid periodically.
  • An annuity, when the injured patient’s needs have increased as a result of a medical error, or the patient’s prospects for the future have decreased, a periodic benefit, paid at regular intervals; most often covers costs related to current and future treatment (e.g., specialist consultations), the cost of purchasing medicines or the assistance of another person (caregiver, nurse).
  • Interim pension if the extent and amount of damage cannot be precisely determined as of the date of adjudication.
  • Monetary compensation for the harm suffered, by which is meant physical suffering and negative psychological experiences.
  • Determination of the liability of the perpetrator of the damage for the consequences of the event that may emerge only in the future, which cannot be determined at a given moment (the so-called claim for determination).

Based on the provisions of the Act of November 6, 2008 on Patients’ Rights and Patients’ Ombudsman, you can claim compensation for harm suffered as a result of violation of patient rights.



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