For over two years voivodeship commissions adjudicating on medical incidents have been examining cases in which medical errors might have been made. If they find that indeed a medical error has been made, the patient – without resorting to the court – may obtain damages from the hospital as soon as in a few months.
The commissions adjudicate only on medical incidents that occurred in hospitals after 1 January 2012.
Who may claim damages?
Applications for damages may be filed to voivodeship commissions adjudicating on medical incidents by the patients concerned, their attorneys or – in the case of the patient’s death – heirs. Applications shall be filed within a year from the date when the patient became aware of a resultant infection, bodily injury, disorder of health, or when the patient died. The maximum deadline for filing a claim is 3 years from the date of the incident. The fixed fee for filing an application is PLN 200.
In line with the applicable regulations, the cases that may be reported include infection, bodily injury, disorder of health or death of the patient which followed a diagnosis, treatment or application of a medicine in a manner inconsistent with current medical knowledge.
This refers inter alia to cases where the diagnosis led to improper treatment or delayed proper treatment, contributing to the development of disease.
The Commission adjudicates only whether or not a medical error has been made, while the amount of the damages is negotiated by the patient with the hospital. However, when the claimant accepts the proposed compensation and damages, then it is no longer possible to bring the case before a civil court.
How to file a claim?
Claim applications should include the patient’s personal details, hospital data, description of the incident and the damage, and the suggested amount of damages. In the case of infection, bodily injury or disorder of health, the amount cannot exceed PLN 100 thousand, and in the event of death – PLN 300 thousand.
The application should be accompanied by evidence proving that the circumstances indicated in the application have occurred, a copy of medical documentation, and relevant medical certificates.
The Commission forwards the application to the manager of the hospital and the insurer, and they have 30 days to present their stance on the case. If they fail to do so by that time, this shall mean that both the claim and the amount of damages are accepted.
The Commission must issue its decision within 4 months from the claim filing date. The claimant and the hospital have the possibility to file a request to the Commission, within 14 days from the receipt of the decision, to re-examine the case. Then the Commission shall have 30 days to re-examine it.
The insurer should present its suggestion as to the amount of damages within 30 days from the lapse of the deadline to file a request for re-examination or from the receipt of the decision following re-examination.
If the insurer fails to present its proposal by that time, it shall be obliged to disburse damages in the amount indicated in the application.
The possibility to claim damages for medical incidents has been provided for by the law since 1 January 2012, when the amended Act on Patient Rights and the Patients’ Rights Ombudsman as well as the amended Act on mandatory insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau came into force.
According to the data held by the Patients’ Rights Ombudsman, in 2012 the Commission received 432 applications, and from January until the end of September 2013 – 987 applications. The highest awarded and accepted amount of damages was PLN 100 thousand in the case of disorder of health and bodily injury, and PLN 150 thousand in the case of death.