Compensation for medical error
The Joanna Jakubowska-Zawada Law Office, apart from providing day-to-day legal services to medical entities, specializes in medical law, in particular in cases where the main element is to determine the occurrence of a medical error.
A medical error/medical error is an unintentional act, omission or omission by a doctor, dentist, nurse, midwife or other medical professional causing harm to a patient. In other words, it is a situation in which medical procedures – whether they concern diagnosis or treatment – are incompatible with generally accepted norms, principles of operation and current medical knowledge.
A medical error that will have legal consequences in terms of the need to compensate the patient for harm and harm must consist of the following elements:
- conduct contrary to the generally acknowledged state of medical knowledge,
- a negative result of the mistake made, i.e. the harm to the patient,
- a causal link between the error committed and the negative outcome of the therapeutic intervention in the form of death of a patient, injury or disorder of health.
Four types of medical error:
- a diagnostic error is a defective diagnosis of a patient’s state of health. It occurs in the form of so-called positive errors (the doctor recognizes a specific disease in the patient, while the patient does not suffer from it and is healthy) or negative error (the doctor does not recognize the disease in the patient). There is also a third type of diagnostic error – a mixed error whose essence lies in the fact that the doctor diagnoses the patient with a different disease than the one from which the patient actually suffers;
- therapeutic error consists in the use of the wrong treatment method or, despite the choice of the correct treatment method, its improper conduct. The inappropriateness of a method is determined by its contradiction with lege artis methods recognised in this case and by the assessment of individual circumstances such as the patient’s condition, age, condition, severity of the disease or the objective therapeutic potential of the facility in question;
- a technical error consisting in a technically inappropriate performance of a specific therapeutic action. There are two forms of this error: an error based on an error in medical art and an error based on mistake or negligence;
- organisational error is understood as cases in which bad organisation of work in a given therapeutic entity by persons in charge of work, which caused the occurrence of a therapeutic error, significantly contributed to the occurrence of health impairment in a patient.
Before filing a claim for compensation, it is necessary to take appropriate preparatory steps to obtain possibly complete documentation, evidence in support of the occurrence and amount of damage, evidence justifying the annuity and compensation for the harm suffered. It is also important to carry out an in-depth analysis of the case, since a patient seeking compensation from a medical entity or a doctor for a medical error is obliged to prove before a court that that entity or doctor is to blame for the very act which caused harm to the patient. It is therefore necessary to properly assess the probative capacity, the statute of limitations of the claim or the adequacy of the compensation on which the success of the case and its quantifiable effect in terms of the payment of money to the patient depend.
Claims for so-called medical error can be of three types:
- compensation in the strict sense of the word serves to compensate for material damage suffered (e.g. expenditure on medicines, visits to specialists, nursing and rehabilitation services, care of third parties, costs of professional training courses). The amount of compensation is therefore strictly dependent on the costs incurred by the patient as a result of the error;
- Compensation for non-material damage is intended to compensate for non-material damage (often referred to as moral damage), which includes, inter alia, bodily injury, disorderly health, physical and mental suffering, the need to change lifestyles and the deterioration of life prospects;
- the pension is available to the injured if the consequence of the damage suffered is total or partial incapacity to work, increased needs or reduced prospects of future success.
As an alternative to court proceedings to pursue claims in medical cases, a request to the Provincial Commission for Medical Records may be filed. This is a possibility provided for by the legislator to satisfy patients’ claims in statutory amounts, assuming less formalism than court proceedings.
A medical event is an infection of a patient with a biological pathogen, bodily injury, disorder of health or death of a patient, which is a consequence of inconsistent with current medical knowledge:
- diagnosis if it has caused inappropriate treatment or delayed appropriate treatment, contributing to the development of the disease,
- treatment, including surgery,
- the use of the medicinal product or the medical device.
Proceedings before the Commission are often more appropriate than judicial proceedings or a kind of pre-litigation, but each case must always be assessed on its own merits, including the merits of the action taken by patients or their families.
The Joanna Jakubowska-Zawada Law Office, within the framework of proceedings for compensation and reparation for so-called medical errors, provides consultation and legal advice in determining the existence of grounds for claims against medical entities, analysis of medical documentation, and represents clients in mediation processes, disciplinary proceedings, administrative proceedings, criminal proceedings and civil proceedings.