Personal injury lawyers

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

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.

In court proceedings, witness statements are the primary evidence. They must therefore be reliable and accurate. Because of the importance of this testimony, it is understandable that the laws of various countries impose an obligation on witnesses to tell the truth and a prohibition against concealing the truth under penalty of law. Polish criminal law punishes violations of this obligation with imprisonment of up to 8 years (Criminal Code art. 223 § 1).

However, a problem can arise when a witness, such as a doctor, testifying in a medical malpractice case, fears that telling the truth, revealing it, will lead to charges against him.

Obviously, according to Article 183 § 1 of the Criminal Procedure Code, a witness may decline to answer a question if, in his opinion, answering it could expose him or a person close to him to criminal liability.

But what if a witness, fearing that he will be charged, instead of refusing to answer a question, lies or suppresses the truth?

As of 2016, this issue is regulated by Article 223 § 1 a of the Penal Code, according to which ‘If the perpetrator of the act referred to in § 1 testifies falsely or secrets the truth out of fear of criminal liability threatening himself or his immediate family member, he is subject to the penalty of deprivation of liberty for between 3 months and 5 years.’.  It can be said that this provision imposed a duty on witnesses to self-incriminate.

In addition, such a provision may lead to the temptation to call potential suspects as witnesses first because they face criminal liability under this provision for making false statements.

This regulation has been controversial from the beginning due to the fact that it is impossible to reconcile it with the constitutional right to defence contained in Article 42(2) of the Constitution of the Republic of Poland and stipulating that ‘Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings (…)’.

The Ombudsman, who also recognised the problem of incompatibility of Article 233 § 1a of the Criminal Code with the constitutional right to defence, went even further and alleged that this provision is incompatible with international and European law, namely with Article 14 § 3 (g) of the International Covenant on Civil and Political Rights and with Article 6 § 1 of the Convention on Human Rights and Fundamental Freedoms (Position of the Ombudsman for the Constitutional Court in the case initiated by a legal question from the District Court in T. ref. no. P 4/20).

Moreover, the regulation introduced in 2016 is contrary to the thesis contained in the resolution of the entire Criminal Chamber of the Supreme Court of 20 September 2007, I KZP 26/07, which reads: “A person does not commit the offence of false testimony (Article 233 § 1 of the Criminal Code) who intentionally gives false testimony concerning circumstances relevant to the exercise of his right of defence (Article 6 of the Criminal Procedure Code)”, which was followed by other courts in making their judgements.

The problem was recently addressed by the Supreme Court, which issued a Resolution of November 8, 2021, composed of 7 judges, giving effect to the legal principle, which reads:

“A witness who gives false testimony out of fear of facing criminal liability does not commit an offence under Article 233 § 1a of the Penal Code if, in exercising his right of defence, he gives false testimony or conceals the truth without at the same time exhausting with his conduct the elements of a prohibited act specified in another provision of the Act.”

Thus, the Supreme Court has taken the position that a witness who fears the threat of criminal liability has the right to exercise his right of defence and lie when giving testimony. This principle is binding only for all compositions of the Supreme Court, although it is not without influence on the case law of common courts (Order of the Supreme Court of 17.05.2019, V CZ 23/19).

At present, another problem also arises, namely whether the legal principle expressed in the Supreme Court Resolution of 8 November 2021, ref. I KZP 5/21 will be applied due to the disputed composition of the judges who issued it. The answer to this question will be provided by practice.

Finally, it is also worth mentioning that the constitutional right to defence does not extend to the falsification of medical records. If, for example, a doctor falsifies medical records and is subsequently charged with a medical mistake, he will be held liable both for the medical mistake and, independent of liability for the medical mistake, for falsifying medical records (Article 271 of the Penal Code/270 of the Penal Code).

[author: Aleksandra Lipien]