The personal injury team at the BFP law firm specializes in every kind of personal injury case where the injury occurred on the territory of Poland. We have represented, and are still representing, hundreds of clients across Poland, as well as residents of other countries, that seek compensation for their injury resulting from medical negligence, road traffic accidents, aviation accidents, defective products, and others. [Read more.]

In 2018, the Insurance Guarantee Fund (UFG), in cooperation with the Polish Motor Insurers’ Bureau, developed a solution that allows insurers to access important data from police notes regarding road traffic accidents, including the time, place, circumstances, drivers, and vehicles involved.

Today insurers have access to an even wider range of data, including information on injuries, fatalities, and driving privileges. Insurers will also learn whether the drivers were in a state after the use of alcohol, in a state of insobriety, or after using narcotic drugs, psychotropic substances or substitutes – as defined by the Act of Law of 29 July 2005 on Counteracting Drug Addiction. As the UFG points out, this is important for the market because incidents that occur when under the influence are excluded from the insurer’s liability.

The extended data scope applies to road traffic incidents that occur from 29 September 2023. The UFG tool provides access to police notes data only for insurance companies with whom the holders or drivers of the vehicles involved in the incident have entered into a contract of insurance.

 

Have you suffered damage during treatment? The first thing you need to do is get medical records from a medical facility in which you were treated, which will allow you to analyze the course of your treatment, assess its correctness, and determine issues such as, in particular, whether you have given proper consent to the treatment.

Before you file a possible lawsuit to the Polish court, you must try to resolve the dispute out of court. For this purpose, you should call the hospital, other medical facility or the doctor and their insurers for payment, provided that you have received information about the insurer’s details. The insurer will always ask you for medical records from your treatment. It is necessary for the insurer to analyze the case and the validity of your claims under the so-called ‘settlement proceedings’.

Who can make the request?

Medical records must be made available to the following entities upon request:

 

  • to the patient;
  • the patient’s legal representative;
  • a person authorized by the patient.

 

Therefore, the patient’s medical records are made available to him upon his request. The child’s medical records should be made available to his or her parents or guardian, and in the case of a partially incapacitated person – to the curator, and in the case of a completely incapacitated person – to his or her guardian.

What happens after patient’s death?

When referring to the provision of medical records to a person authorized by the patient, it should be emphasized that this authorization remains legally valid even after the patient’s death.

The issue of sharing medical records after the patient’s death has been regulated separately. In such a situation, access to documentation should be provided upon request:

  • a person authorized by the patient during his lifetime;
  • the person who was the patient’s legal representative at the time of the patient’s death;
  • a close person, unless another close person objects to the disclosure or the patient objected to it during his or her lifetime.

 

Difficult situations

Unfortunately the law does not regulate all possible situations. For example, a question can be asked: who can request access to the medical records of a patient in a vegetative or comatose state who has not previously authorized anyone to access the records at the medical facility from which we want to obtain them? According to the case law, it is assumed that if such a patient has ever submitted such an authorization, even in another medical facility, it remains in force and may constitute the basis for making medical records from another facility available to the person for whom it was established. In the Online Patient Account provided for patients in Poland (IKP), anyone can authorize any person to access medical records – this is the best protection for the situation described above.

 

Deadline for the issuance of medical records

At the request of the entitled person, medical documentation should be made available immediately.

So much for the theory. And what does it look like in practice? Unfortunately, it often happens that a patient or other authorized person waits much longer than required by law for access to medical records. How can this be remedied? Unfortunately, there is no quick and effective method. One of our clients waited eight months for his medical records to be made available to him before he sought help from our law firm.

 

Special solutions

Due to the fact that the right to access medical records is a patient’s right, a person authorized to access medical records may contact the Patient Ombudsman to initiate explanatory proceedings. If the Patient Ombudsman finds a violation of the patient’s right in the above respect, he or she may submit a complaint to the entity providing health services in whose activities he or she found a violation of the patient’s right to access medical records. The entity providing health services is obliged to immediately, but no later than within 30 days, inform the Ombudsman about the actions taken or the position taken. In an ideal world, it should therefore provide medical documentation to the authorized person and inform the Ombudsman about it.

What if the medical facility still doesn’t do it? There is one more legal way available – it is possible to file a complaint to the administrative court about the inaction of a medical facility in providing medical records. The court may oblige the medical facility to provide medical records within a specified period, as well as impose a fine or award the complainant from the medical facility a sum of money specified in the regulations.

Dr. iur. Anna Miśtal-Kluś

Plastic Surgery Malpractice in Turkey

Gabriela Lenarczyk17 October 2023Komentarze (0)

Are you considering undergoing plastic surgery in Turkey? The Internet is full of accounts encouraging people to combine the ‘pleasant’ with the ‘useful’, i.e., a holiday with an aesthetic medicine procedure. Unfortunately, an increasing number of reports suggest that the quality of these services is unfortunately as low as their price. A medical error committed in Turkey is most often treated back in Poland. Expenses pile up and a questions arises: what can be done about it?

How to seek compensation for a medical error committed by Turkish doctors? Here, unfortunately, the problems continue. Turkey is not a member of the European Union, so patients who are treated there cannot benefit from the facilitations that EU law introduced for citizens of EU countries. The assessment of whether or not a medical error has occurred is governed by Turkish law. Finally, the procedure for obtaining compensation for an error must be initiated in Turkey.

Therefore, Atty. Jolanta Budzowska asked her professional colleague, Turkish lawyer Cemre Yilmaz Akyay, who, like her, is a member of PEOPIL and specialises in medical malpractice cases, about a number of issues that may be of interest to Polish patients considering travelling to Turkey for a cosmetic procedure.

What legal steps can be taken by a patient who has undergone plastic surgery in Turkey and is convinced that a medical error has occurred?  And that the result of the treatment falls far short of his expectations? I am referring to operations such as breast augmentation, hair transplantation, liposuction, abdominal plastic surgery or buttock implants…

In some cases, we notice that clients still have a good relationship with the doctor/assistant. In such situations, the option of a free or reduced fee corrective surgery can be considered. If clients agree to this, they undergo another surgery with the same doctor. This option has satisfied many clients. However, there are also clients who have lost their trust in the doctor and do not want to be treated by the same doctor again.

In many cases, we observe that the doctor/assistant no longer responds to the clients’ messages. When no solution is offered, unfortunately, the only option left is to go to court.

Where to start?

The main problem is the widespread difficulty in obtaining medical records. Hospitals often refuse to provide the medical records. For this reason, initiating a criminal procedure may be necessary to request the necessary documents through the prosecutor’s office. Additionally, a civil lawsuit can be filed. You can sue the public or private hospital, as well as the doctor performing the procedure, and of course their insurers.

Is there – as is the case in Poland – compulsory third-party liability insurance in Turkey, i.e., insurance against liability related to the course of treatment?

Physicians, dentists and specialists as per specialist legislation, who are working in public health institutions and organizations are obliged to have an insurance against the damages that can be claimed from them by the third parties due to medical malpractice and against the recourse to be made to them by their own institutions.

Most of the policies cover an amount of 250,000 Turkish Lira (€8.700) up to 750,000 Turkish Lira (€26.000). There are policies above this amount, but insurance companies require approval from the general directorate for amounts like 1,000,000 Turkish Lira (€34.700). Doctors or clinics that lack liability insurance may face a fine.

Insurance for private clinics is voluntary. Here, policies are often higher and reach the equivalent of €63.000.

Can compensation be claimed directly from the insurer that insures the doctor or the clinic? 

Yes, but this involves, among other things, the jurisdiction of the courts. In Turkey, a medical malpractice claim can be referred to three different courts. Firstly, before the Consumer Court – the condition is prior mediation. If the proceedings are to be brought against the insurer, the Commercial Court will have jurisdiction. Here, prior mediation is also necessary. And finally, lawsuits against public hospitals are referred to the Administrative Court.

What costs are involved in pursuing a claim for damages?

The court fee is calculated based on the claim amount. Additionally, expert fees and other costs such as postage expenses.

There is no court fee when the claim is handled by the Consumer Court.

The court fee is a percentage of the claim amount. There is no certain percentage on every kind of claim amount. To give some examples for the year 2023:

  • Claim amount: 100.000 Turkish Lira has a court fee of 3076,50 Turkish Lira.
  • Claim amount: 500.000 Turkish Lira has a court fee of 9907,50 Turkish Lira.
  • Claim amount: 1.000.000 Turkish Lira has a court fee of 18.446,25 Turkish Lira.

In addition, the claimant incurs other costs, such as postal fees and the costs of expert opinions, which amount on average to between 3.600 –  5.600 Turkish Lira.

Is an injured patient entitled to compensation, damages, pension for increased needs (e.g. need for care by a third party)?

The amount of compensation can vary depending on several factors. The calculation of compensation is a complex process that takes into account various elements, including medical expenses, loss of income and pain and suffering.

If, for example, the patient becomes permanently disabled or experiences a significant impairment due to the malpractice, compensation may be provided for the long-term impact on their quality of life and ability to work: e.g., occupational disability compensation, need for care by a TP etc.

There is also a possibility to seek compensation to reimburse the financial or emotional support and care lost by a person’s family members or dependents due to their death or injury. This compensation can be provided to family members or dependents who have lost the deceased or injured person’s income or assistance. Loss of consortium compensation is sought to compensate for the decline in the living standards of family members or dependents resulting from the death or injury and is often used in legal proceedings.

How much time do we have to claim compensation for a medical error in Turkey?

Claims for malpractice against public hospitals should be initiated within 1 year from the date of discovery of the damage and the doctor’s negligence. A written application to the relevant administrative authority must be made within this timeframe. If the administrative authority does not respond within 30 days or partially or completely rejects the application, a full liability lawsuit in administrative court must be filed within 60 days from the end of the 30-day period or from the date of receipt of the rejection response.

A two-year limitation period applies when a case can also be classified as a criminal offence. The limitation period against private clinics is longer – five years.

Does the patient’s written contract and consent for the procedure change the patient’s legal position in case of complications? If so, how?

In emergency situations, intervention is at the discretion of the physician. In general plastic/aesthetic surgeries are not emergency situations, so there is always a written consent by the patient or representative.

In most of my cases, the consent agreements are signed on the same day as the surgery. Case law states that when a consent agreement is signed on the same day as the surgery, we can conclude that the patient is not informed properly.

Additionally, it’s worth considering whether the contract was drafted in the individual’s native language and if in Turkish, if they received assistance from an interpreter. Also, this is most of the time a problem. 90% of the consent agreements are in Turkish. In light of the aforementioned circumstances; yes, it can change the patient’s legal position in the case.

Is there a publicly available register of doctors in Turkey and what information regarding qualifications does it contain?

Yes, Turkey maintains a publicly available register of doctors, which includes, i.a., the name and surname, the registration number assigned to each registered doctor and information about the doctor’s qualifications, including his or her degree and specialisation. This register is typically overseen by the Turkish Ministry of Health and may be accessible through the Turkish Medical Association website https://www.ttb.org.tr/.

Thank you for the interview.

With travelling abroad for cosmetic surgery on the rise, Poland has seen a steady increase of medical tourists seeking cheaper cosmetic and dentistry treatments. While at first glance such trips look appealing, one must always consider risks associated with having a surgical procedure in a different country – if something goes wrong, the path to compensation may prove to be laced with legal and procedural challenges. Regular readers are already familiar with our 7-step guide for tourists injured in Poland. This post however is dedicated to the specifics of claims in cases of elective aesthetic medicine procedures.

 

This September during PEOPIL’s Annual Conference, I had the pleasure to participate in a panel on litigation from cosmetic and plastic surgery from the perspective of Czech Republic, Poland and Turkey. I highlighted a few issues worth noting:

In cases of cosmetic surgery, patient dissatisfaction does not equal physician liability.

Although patients quite often feel dissatisfied with the results of the operation, e.g., they feel that the shape of their lips/the size of the breasts/visibility of their scars is not what they expected, under Polish law, cosmetic surgery procedures are qualified as a duty of care. This means that the doctor’s liability is not triggered by the fact that the results promised by the doctor have not been achieved, despite the diligence exercised (see Judgement of the Polish Supreme Court of 10.01.2000, case No. III CKN 1008/98).

On that note, when assessing liability under the duty of care, the courts will consider circumstances such as

  • maintaining an appropriate proportion of the surgical risk in relation to the expected result
  • highest care with regard to the manner of carrying out the surgery and its technical conditions,
  • the requirement of the patient’s consent.

 

Injured patients have a direct right of action against the third-party civil liability insurer.

According to the principle of action directa, injured patients have the right to raise a claim directly against the insurance company. The insurer is an independent debtor, who can be joined as co-defendant at all stages of proceedings.

However, although insurance is obligatory under law in regard to all healthcare services providers, there is an exception as far as plastic surgery – this kind of treatment is not covered under compulsory insurance, unless it is performed to correct a birth defect, damage resulting from injury or an illness, or from the treatment thereof.

Healthcare professionals who perform cosmetic surgeries thus purchase additional, voluntary insurance and are under an obligation to disclose information about their insurance coverage to each patient, upon their request.

 

Beware of procedures carried out by cosmetologists, cosmeticians and beauticians – their professions do not fall under the Medical Profession Act.

 Although procedures such as lip reshaping/lip augmentation or Botox injections are considered an invasive, medical procedure, that should in principle be carried out by a doctor, it is becoming increasingly more common for them to be carried out by non-doctors: cosmetologists, cosmeticians and beauticians.

These professions do not fall under the Medical Profession Act (Ustawa z dnia 5 grudnia 1996 r. o zawodach lekarza i lekarza dentysty, Dz.U. 1997 nr 28 poz. 152) and are therefore not covered by certain requirements, crucial to providing adequate compensation to victims of negligence. Specifically, they are not required to purchase insurance or keep medical records.

Both doctors and lawyers are calling for this legal situation to be changed for the sake of patients, but so far, despite ongoing debates, no law has been passed.

 

Scope of informed consent goes furthest in aesthetic medical procedures.

 In Poland, it has been consistently accepted in the case law of the Supreme Court that the scope of information provided to the patient must depend on the type of surgery. This scope goes furthest in the case of procedures carried out solely for aesthetic purposes.

Further, in the case of aesthetic medical procedures, the patient should be informed even about rare complications.

 

The condition of personal injury is not necessary for the award of compensation for the violation of patients’ rights.

If a healthcare professional violates any rights of the patient (see the Act on Patients’ Rights and Patients’ Ombudsman of 6 November 2009), most commonly in cases of cosmetic surgery – the right to give informed consent – the patient is entitled to a claim for redress, regardless of whether the doctor committed medical malpractice.

Such redress is awarded for the mere fact of the violation.

See our previous posts to learn about basics of pursuing medical negligence claims in Poland: limitation periods, damages, litigation costs etc.

 

 

Compensation for a medical event (medical error) will soon be available in a new, simplified way. Who will be entitled to compensation benefits for a medical event? Who will benefit from using this path? Find out below!

NOTE: examples at the end of the article!

In short:

Deadlines for filing a claim: 1 year from finding out, 3 years from the medical event

Who files the claim: the patient or, in the case of death, any member of the immediate family

What compensation can be obtained: from two thousand to a maximum of two hundred thousand zloty for the patient, and from twenty to one hundred thousand zloty for each entitled person in case of death of the patient

For what: for treatment in a hospital and only when it has been funded by the “National Health Fund” (public funds), and when the treatment resulted in an infection with a biological pathogen or in bodily injury or disorder of health

What you can’t get: periodic benefits (compensatory pensions) and high compensation.

Where to apply? The application is submitted to the Patient Ombudsman.

Details below.

Deadlines for applying for compensation benefits for an event

If the medical event occurred before the entry into force of the new regulations, the application for compensation benefits can only be filed if the applicant learned of the biological pathogen infection, bodily injury or disorder, or the death of the patient, after the date of entry into force of this law.

If the event occurred after the entry into force of the new legislation, we have one year from the date on which the applicant learned of the medical event or the death of the patient to file the application, but no later than three years from the occurrence of the event or the death of the patient.

 

Świadczenie kompensacyjne za zdarzenie medyczne, odszkodowanie za błąd medyczny

Świadczenie kompensacyjne za zdarzenie medyczne, odszkodowanie za błąd medyczny

Who can apply for compensation benefits

An application to the Patient Ombudsman can be submitted by:

– the patient

– in case of death of the patient:

  1. first-degree relatives – i.e. daughter, son, mother, father
  2. a non-separated spouse
  3. adoptee or adopted person
  4. a person who is in cohabitation with the patient.

When is it impossible to apply for compensation benefits?

  • when a civil case in court for compensation, pension or compensation for a medical error has been pending and has resolved:
  • when a civil case for compensation, pension or compensation is pending;
  • if the applicant has received compensation, pension or damages from the person responsible for the damage, including under liability insurance – that is, for example, the conclusion of any settlement under which you received any compensation for the event excludes the possibility of obtaining a compensation benefit;
  • there were criminal proceedings and the court ruled in favor of the applicant to make reparation for the damage caused by the crime or to compensate for the harm suffered, or to pay a surcharge.

Where did the medical event occur?

Compensation benefit can only be awarded for a medical event that occurred:

– in a hospital

and only,

– if it was publicly funded treatment, by the “National Health Fund”.

In respect of treatment in private clinics, dispensaries, doctors’ offices – compensation from the Patient Ombudsman is not available.

What is a medical event?

In what situations is a patient or his family entitled to compensation benefits?

A medical event is:

– hospital infection

– bodily injury or disorder of the patient’s health

– death of the patient

– if these events occurred during or as a result of treatment in the hospital, which with a high probability could have been avoided if the treatment had been carried out in accordance with current medical knowledge or if another available diagnostic or treatment method had been applied.

A medical event, however, is not…

However, when the issues that occurred were ordinary, typical complications of a given medical procedure, that is not considered a medical event. In other words: foreseeable normal consequences of a method to which the patient gave informed consent.

Ultimately, it will be up to the Patient Ombudsman to decide whether a situation qualifies a patient for a compensation benefit.

However, it is certainly worth remembering that – simplifying – the benefit will be granted only if there were errors in the treatment. And additionally: when they came with a high probability of adversely affecting the outcome of that treatment.

What compensation is due from the Compensation Fund?

What compensation will be due is determined by a table that “calculates” specific health damages and assigns specific amounts to them.  For now, it is only available in the form of a draft regulation.

In the event of a patient’s death, it is easy to calculate potential compensation for yourself. For example: if a patient dies at the age of 66 – then his daughter can receive 20 thousand zloty from the Medical Events Compensation Fund.  Provided, of course, that the Patient Ombudsman finds that the cause of death was a medical event.

It is much more difficult to calculate for oneself the potential compensation for a medical error – a compensation benefit in case of deterioration of the patient’s health. At the end of the post are some examples in that regard.

What can be gained?

– you can gain relatively quickly (the law assumes 3 months) “some” compensation for a medical error, i.e. compensation benefit for a medical event;

– you can save on costs. The application for a compensation benefit only costs 300 zlotys. This is the fee to be paid on the application;

– compensation benefits are exempt from income tax;

– You can also gain confirmation that there were irregularities in the medical treatment, but not accept the compensation benefit. This does not prevent you from using other avenues to seek compensation for a medical error;

– important!  It is important to remember that the Patient Ombudsman’s decision on the compensation benefit is not binding for the courts.  That is, the Ombudsman may find that a medical event has occurred, and the court will nevertheless dismiss the claim for compensation, pension and damages for a medical error.

What can be lost by accepting the compensation benefit?

If the Patient Ombudsman determines that a medical event has occurred and the applicant accepts the offered compensation benefit, this ends the case. Acceptance of the benefit prevents the patient from obtaining compensatory pension or anu other, further compensation for injuries known at the date of application.

That is, if, for example, the patient has been partially paralyzed, and it is known in advance that he will require care and, in the future, wheelchair replacement, elevator installation or commercial medical visits or rehabilitation. By accepting the compensation benefit, he will lose his ability to obtain compensation and compensatory pension to cover such expenses.

Example 1

In calculating the hypothetical values of the compensation benefit, I relied on the draft regulation from the end of 2022, because on the date of publication of this post, a newer draft was not yet available.

Judgment of the Court of Appeals in Katowice on January 27, 2021, I Aca 1018/19. A six-month-old girl died in March 2015, two days after a nurse at a hospital, while administering medication to the girl, mistook the entrances. She disintegrated the medications in liquid, instead of administering them to the baby’s stomach through a nasogastric probe. She injected them intravenously. The child suffered shock. The court confirmed that – under the circumstances of the case – the amount of 250 thousand zloty for each parent and 50 thousand zloty each for the siblings and grandmother is adequate compensation for the death of a loved one. The case was pending for 5 years, but there were parallel criminal proceedings. For the duration of the proceedings, the clients received statutory interest for delay. Compensation was paid by the hospital’s insurer.

If the whole situation had taken place in September 2023, and the girl’s family had applied to the Patient Ombudsman, only the parents would have received compensation (PLN 100,000 each). Neither the deceased’s siblings nor her grandparents would receive the compensation beneft.

Example 2

The patient was not given immunoglobulin during pregnancy, even though there was a risk of serological conflict. The injection should be given between the 28th and 30th week of pregnancy. My client developed antibodies due to a medical error.  The result is that any subsequent pregnancy would be very risky. There is a high probability of hemolytic disease and even intrauterine death of the fetus.

The error of the doctor in charge of the pregnancy within the gynecological clinic resulted in violation of the personal rights of the patient and her partner. Their right to shape their family life was violated. Based on a settlement reached in 2022, the doctor’s insurer paid them a total of PLN 220,000 in compensation.

If the patient and her partner had applied for compensation benefits, they would have received nothing, because the treatment was provided on an outpatient basis, not in a hospital. If it were hypothetically assumed that the patient had just spent those weeks of pregnancy in the hospital, and it was there that the negligence occurred, the patient could count on compensation benefit (her husband could not count on it). In what amount?  8,000 zloty for the deterioration of quality of life due to a significant limitation in the ability to perform family roles.

Example 3

In January 2021, we reached a court settlement before the District Court in Katowice.  The insurer of the treating entity paid compensation and damages totaling more than PLN 260,000. The cause of the compensation proceedings was an error in the histopathological examination of the neck tumor excised from the injured patient. The patient had a completely healthy thyroid unnecessarily removed. However, the consequence of the medical error was not only the need for thyroid hormone replacement therapy.  There were also other complications in the patient’s subsequent treatment.

If the patient had filed a claim with the Patient Ombudsman, he could have expected about 40 thousand zloty (including 6 thousand zloty for other permanent damage to health, about 30 thousand for inconvenience of treatment and 5 thousand for significant deterioration of quality of life).

Which is more profitable?

As it can be seen, in each of these cases the compensation benefit possible through the out-of-court track is far less than that determined by the court or even negotiated with the insurer of a medical entity.

However, there are situations where this compensation benefit will be more favorable than a several-year trial or even a settlement with the hospital. The patient has a choice as to which procedure he or she wants to use in a given life and health situation.

It will be worthwhile to consult your options and strategy with a lawyer. Feel free to contact me.