Who can be held responsible for medical malpractice in the realm of medical tourism?

Jolanta Budzowska        12 October 2018        Comments (0)

In recent years, Poland has become one of the most popular tourism destinations among tourists from Great Britain, Germany, Sweden and Norway who look for highly specialised medical services during their travel. Medical services may qualify as travel services supplied to a traveller within the meaning of the Act on Package Travel – Polish national provision transposing the Directive 2015/2302 . This raises a question of distribution of liability for the quality of medical services provided by healthcare entities. Who can be held responsible for medical malpractice when the medical service is provided within the framework of a package travel or when it has been purchased by a patient as a linked travel arrangement?

Healthcare entity as as a tourism entrepreneur

In practise, the tourism organiser or the entrepreneur who assists in the purchase of linked travel arrangements is the entity operating strictly in the tourism industry. However, there may be circumstances where the healthcare entity has the status of a tourism entrepreneur. This entails far-reaching responsibilities and liability for medical negligence.

The prime responsibility of a healthcare entity who is a provider of travel services in the form of a healthcare service is certainly to comply with all rules on providing the healthcare service duly, consistently with current medical knowledge and professional ethics – under existing legislation including in particular: the Act on Patient’s Rights, the Act on Professions of a Physician and Dentist and the Act on the Healthcare Institutions. The traveller – regardless of whether he is a Polish citizen or a foreigner – can exercise all patient’s rights as set out in the Act on Patient’s Rights: i.a. the right to healthcare services consistent with current medical knowledge (Article 6 (1) of the Act on Patient’s Rights), the right to healthcare services provided with due diligence by entities providing healthcare services under conditions that meet professional and sanitary requirements specified in separate provisions (first sentence of Article 8 of the Act on Patient’s Rights), the right to healthcare services provided by healthcare professionals who follow the principles of professional ethics specified by relevant healthcare professional’s organisations (second sentence of Article 8 of the Act on Patient’s Rights) and the right to information on own health status (Article 9 (1) of the Act on Patient’s Rights).

When it comes to package travels in relation to medical tourism, in addition to the usually encountered inconsistencies (issued with accommodation, transportation, etc.), the primary risk of medical tourism is the risk of bodily injury or disorder of health due to negligence or the so-called medical error in providing the traveller with healthcare services – which in turn may lead to material and non-material damage (harm) of the traveller.

 
 

Treatment as a linked travel arrangement

Moving on to the considerations on the scope of liability of tourism entrepreneurs in relation to medical tourism, it must be pointed out that when applying the model of linked travel arrangements, each of the tourism entrepreneurs is responsible for his own actions and omissions. Therefore, in case an inconsistency occurs during the provision of a healthcare service, the entity liable to the traveller would be the healthcare entity – within the framework of fault-based tortious liability. This means that it is the traveller who would bear the burden of proving the existence of circumstances warranting the liability: the healthcare entity’s wilful act or omission, the scope (amount) of the traveller’s damage as well as the causal link between the act/omission and the damage. However, the situation may be different if the healthcare service is part of a package travel.

Treatment as part of package travel

The tourism organiser is liable for performing tourism services covered by an agreement on package travel, regardless of whether such services are performed by the tourism organiser or other tourism services providers. This provision establishes the organiser’s contractual, strict liability. The tourism organiser cannot discharge himself of liability by indicating that he entrusted a professional with the performance of a particular service. Therefore, the traveller is entitled to claim full material and non-material compensation against the tourism organiser, who is strictly liable. This confirms a very vast scope of liability of the tourism organiser toward the injured patient in the medical tourism sector, if the healthcare service is part of the medical travel package.

We have recently discussed the legal aspects of liability for medical negligence in the realm of medical tourism, medical tourism in general as well as the patient’s claims with dr Jan Paradowski – an orthopaedist and a surgeon and the Polish Football Association’s physician – and Anna Białk-Wolf – the co-founder and President of the Institute of Research and Development of Medical Tourism – during a live broadcast in Radio Kraków

Vehicles, vehicles everywhere

Jolanta Budzowska        11 September 2018        Comments (0)

The recent judgments of the Court of Justice of the European Union, which tackle the matter of when a vehicle can and cannot be considered “in use”, are getting more and more attention. In particular, the judgment from 28 November 2017 (C-514/16), in accordance to which a vehicle will not be in use when its principal function, at the time of the accident, was not to serve as a means of transport, has sparked discussion about the potential of implementing appropriate amendments into the Motor Insurance Directive (as can be seen from a still fairly recent press release of the European Commission ).

The impact that these potential changes may have on the position of road traffic accident victims may be significant, depending on the jurisdiction. For example, under Polish law, the Polish judicature has presented a standpoint that it is not relevant whether a vehicle was used as a means of transport at the time of the accident when determining whether it was in use. This is reflected, among others, in the judgments of the Supreme Court of Poland dated 19 December 2013 (II CSK 157/13) and 26 February 2015 (III CSK 187/14).

As such, implementing amendments to the Motor Insurance Directive, aimed at limiting the scope of the Directive to only such vehicles that served principally as a means of transport at the time of the accident, could result in a shift that would be detrimental to victims injured in Poland, in certain situations.

A recent amendment of the Polish Civil Code, which entered into force on 9 July 2018, introduces some important changes to how limitation functions under Polish law.

The basic limitation period for all claims – unless otherwise stipulated by another provision – has been shortened from 10 to 6 years. This particular change does not influence personal injury claims, the limitation of which is regulated by separate provisions (and which stipulate that such claims expire, in general, after three years have passed from the day on which the aggrieved learned of the damage, and of the identity of the person obliged to remedy it, or should have learned by exercising due care).

However, another important change that was introduced with this amendment is the postponement of the expiration date of claims until the last day of the year (i.e. 31 December of a given year). This means that claims will expire on the last calendar day of the year in which the limitation period elapses (although such regulation applies only to claims with a limitation period of at least 2 years, or more).

Due to the way in which this particular provision has been worded, it is currently not entirely clear whether the aforementioned postponement of claim expiration does or does not apply to personal injury claims. While it would seem that the currently prevailing opinion is that it does, caution is advised, at least during the early stages of the amendment’s “life”.

The amendment also introduced the obligation to indicate the due date of all claims pursued in the complaint. Lack of such information in the complaint will result in the court ordering the claimant to provide it, which will prolong proceedings. As such, it is worthwhile to keep this new requirement in mind when drafting a complaint.

From the point of view of the injured and their lawyers, these changes can definitely be called at least slightly confusing. However, in any event, the worst case scenario is that nothing changes for the injured in regard to the expiration of their claims. In the best case scenario, many injured have just gained more time to pursue their claims in court – and in some cases, considerably more.

Without false modesty I am proud to say that one of the awards has been presented to me in the Best General Counsel category

As the Daily Legal Newspaper (“Dziennik Gazeta Prawna”) writes:

“Golden Paragraphs” is an annual award presented to individuals who, over the past year, have had the greatest influence on the quality of our law and the condition of the judicature. It is granted to authorities, most prominent representatives of the legal professions – judges, advocates, prosecutors and general counsels, who uncompromisingly defend the letter of the law in conflict situations – individuals who are courageous in both their public and professional lives.

 

Złote Paragrafy 2018

The Chapter has recognised my professional activity as a trial lawyer specialising in medical negligence nad patients’ rights cases on a daily basis. While I remain grateful for this recognition, I nevertheless believe that this award should go to each and every injured patient and their family members – they are the courageous ones, making the decision to fight for justice in court and taking the burden that comes with this decision onto their shoulders.

It is thanks to them that the safety of the treatment process has improved greatly in these past years and the patients is no longer perceived as the object of the treatment, but rather as its subject. A subject to be reckoned with.

The selection of Mr. Stanisław Zabłocki, a Supreme Court Judge, as a laureate of the Best Judge category undoubtedly indicates the rank of the awards ceremony. When accepting the laurel, judge Zabłocki said:

I treat this award as symbolically presented to one of the judges in recognition of the merits of the entire judicial community who has been fighting for righteous law over the past year.

Prosecutor Bartosz Biernat has been presented an award in the Best Prosecutor category. Mr. Biernat’s actions have led to the acquittal of Tomasz Komenda who has spent 18 years in prison after being wrongfully sentenced.

I share my title ex aequo with Atty. Karolina Kędziora, the President of the Polish Society of Anti Discrimination Law. The awards for Best Advocate have been received by Atty. Martin Pnfur and Atty. Bogumił Kuś who have been fighting for the rights of Polish entrepreneurs in Germany.

Judge Zabłocki has since been so kind as to write a few words to me after the ceremony:

Mrs. Budzowska, please accept my sincerest congratulations for the award presented to you. You are doing a splendid job! And all for the benefit of the injured party. Once again I express     great appreciation.

Thank you, judge Zabłocki for these incredibly kind words. Above all, however, I thank all injured patients: for believing that what we do together makes sense.

How informed are you?

Michał Krzanowski        10 May 2018        Comments (0)

Many medical negligence cases come with an additional layer. On one hand, there is the alleged negligence itself, on the other – the matter of the patient’s consent to be treated, and in particular, whether the consent was informed.

Under Polish law, the rule is that a physician may provide healthcare services only upon obtaining the patient’s consent. There are some exceptions to this rule, but they concern the most extreme circumstances, such as situations where the patient requires immediate medical assistance, and due to his or her age or state of health, is incapable of giving consent, and also when it is not possible to reach their statutory representative or guardian.

Polish law distinguishes between two different forms in which consent may be provided, that is: in writing, and in any other form (most often oral). The rule is that consent may, in general, be given in any form, however consent in writing is required in cases where the treatment in question is a surgery – any kind of surgery – or if the planned treatment or diagnostics carries with it a heightened risk for the patient.

The duty to obtain consent in the appropriate form, and the burden of proof that the consent was obtained, rests upon the provider of healthcare services, which is of significance when it comes to court disputes.

Just obtaining consent, even in the appropriate form, will often not be enough, though. Under law, each physician is obliged to provide the patient with information pertaining to:

  • the state of the patient’s health;
  • the diagnosis;
  • the proposed and possible therapeutic and diagnostic methods, as well as foreseeable consequences of applying these methods, or of abstaining from applying these methods;
  • the results of treatment;
  • the prognosis.

In situations where consent in writing is required, that is when the treatment in question is a surgery, or if the treatment or diagnostics carries with it a heightened risk for the patient, all of this information has to be provided to the patient prior to obtaining their consent – of course, as far as possible.

It is widely accepted that the physician is not obliged to inform the patient about each and every possible complication that can be associated with a particular medical procedure. Instead, the standard is that the patient has to be informed about the most common complications, as well as the most threatening ones (even if they are fairly rare).

At the same time, the type of the planned medical procedure, and also the circumstances in which treatment is to be provided, are also an important factor in respect of the scope of information that the patient should receive. The scope of required information is not universal, and will not always be identical, even in regard to one and the same, specific procedure.

The Supreme Court of Poland has pointed out that the degree of information that should be provided to the patient prior to obtaining consent will be different if the planned treatment is performed in order to save the patient’s life, in which case it is sufficient to inform the patient only of the typical negative consequences and complications of a given medical procedure (or even sometimes to not give any information). However, if treatment is provided without any absolute and pressing indications, and in particular if it would also be reasonable and justified to abstain from that specific treatment altogether in the patient’s condition and circumstances, then the duty to inform the patient is considered to be much more wide, and the information should be much more detailed (judgment of the Supreme Court of Poland of 26 April 2007, case citation II CSK 2/07).

Why is this important? As the Supreme Court of Poland pointed out, providing healthcare services without prior informed consent may lead to liability on part of the provider for all consequences of said services, even in the absence of negligence.

In addition, providing healthcare services without prior informed consent is in itself considered a separate delict under Polish law, in the form of an infringement of the patient’s rights to information about their state of health, and the right to decide the course of their treatment – which may lead to a separate award, solely as compenstation for such infringement.

Hopefully this post has been informative!