Extrajudicial compensation proceedings for injured patients in Sweden and in Poland

Jolanta Budzowska        19 January 2020        Comments (0)

In the face of widespread criticism of the activities of the District Committees Adjudicating on Medical Events (Wojewódzkie Komisje ds. Orzekania o Zdarzeniach Medycznych) as well as considering new developments to investigate alternatives to judicial proceedings, it is worth to consider reasons why a formula of compensating personal injury, intentionally modelled on (among others) the Swedish system, did not fall on fertile ground in Poland. Thus, let us compare legislative solutions adopted in Sweden and in Poland.

Funding

In Sweden, provisions on the right to compensation for damage suffered by a patient as well as provisions regarding the Patients Claims Panel (Patientskadenämnden) are included in the Patient Injury Act of 1996 (which entered into force on 1 January 1997). The Patients Claims Panel, in some ways an equivalent of the District Committees Adjudicating on Medical Events (thereinafter also DCAME), is an entity operated by the Patient Insurance Association (Patientforsakringsforeningen, PFF). All insurers who issue patient insurance for healthcare entities are affiliated to the Association.

Source of financing is the key difference between Swedish legislative solutions and the regulation in force in Poland, where – initially – the Act of 28 April 2011 on amending the act on patients’ rights and the Ombudsman of Patients’ Rights (thereinafter also Act on patients’ rights; it entered into force on 1 January 2012) introduced a new form of an insurance contract together with rules governing the DCAMEs. The costs of insurance policies for medical events were to be charged to hospitals. With time, however, the date of entry into force of the obligation was postponed again and again: first, until the beginning of 2015, then 2016 and 2017, before the obligation of the hospitals to be insured against medical events was fully abandoned. As a result, in the absence of a guarantor whose funds would be used to pay compensation with, it is the healthcare entities (operating – at least in theory – on a self-financing basis) that are directly charged with the obligation to pay compensation and redress to patients. The DCAMEs activities are financed from that part of the state budget which is at the disposal of the relevant voivode.

Medical event – two countries, two definitions

The Swedish model is considered to be an exemplary formula for replacing civil liability with a special form of compensation for patients for medical events which should not have occurred in course of proper treatment, paid irrespective of the fault of a healthcare provider (no fault compensation).

Compensation is provided for personal injury to a patient in Sweden if there is a substantial likelihood that the injury is caused by:

  1. examination, care, treatment or similar action, provided that the injury could haven been avoided either by another embodiment of the chosen procedure or by a choice of another available procedure which, according to an ex-post assessment from a medical point of view, would have met the need for care in a less risky way,
  2. defects in a medical device used in examination, care, treatment or similar action or improper handling thereof,
  3. incorrect or delayed diagnosis,
  4. transmission of an infectious agent that has led to infection in connection with examination, care, treatment or similar action; special circumstances taken into consideration include assessing if the infectious agent was transmitted from an external source during the delivery of care, and if the infection’s severity and rarity outweigh the seriousness of the patient’s underlying disease;
  5. accidents in connection with examination, care, treatment or similar action or during sick transport or in connection with fire or other damage to care rooms or equipment; or
  6. prescribing or dispensing of medicines in violation of regulations or instructions.

The Swedish model does not require proof of fault or malpractice, however the avoidability rule is used instead – a claim is compensated if the injuries of a patient could have been avoided under optimal circumstances, i.e. the injury would not have occurred in the hands of the best health practitioner ro health system. This rule is known as the ‘experienced specialist’ rule. Thus, the benchmark is set at excellent care, rather than acceptable care.

The definition in force in Poland, although seemingly similar, is so complicated that the application of Article 67a of the Act on patients’ rights is troublesome even for the members of DCAMEs. In accordance with the Act, the provisions of Chapter 13a regarding compensation and redress for medical events apply to: infecting a patient with a biological pathogen, a bodily harm or health impairment of a patient or a patient’s death following a non-compliance with the current medical knowledge in the case of:

  1. diagnosis, if it resulted in an inappropriate treatment or delayed an appropriate treatment, contributing to the development of the disease,
  2. treatment, including surgery,
  3. the use of a medicinal product or a medical device.

Thus, the Act introduces a requirement to establish a causal link between the action or omission – which was non-compliant with the current medical knowledge – and the injury to a patient.  There are two critical points that distinguish the Polish definition from the Swedish scheme. Firstly, the Polish definition lacks an unambiguous indication that it is enough – as it is in Sweden – to prove ‘substantial likelihood’. The prerequisite of having to prove the causal link seems stronger than what is required in Sweden, however, relevant case-law makes the interpretation of the definition easier: it leans toward recognising that it is sufficient to prove a high degree of likelihood in order to assume liability.

The second difference is of a fundamental nature and arouses considerable emotions of the medical community when discussing the functioning of DCAMEs: the Swedish criterion of avoidability is the key to recognising that compensation system as ‘no fault’, in contrast to the Polish requirement of proving that the medical staff acted in a manner ‘incompatible with the current medical knowledge’. The decision on a medical event or a lack thereof cannot be issued without proving fault – since that is precisely what most commonly satisfies the ‘non-compliance with the current medical knowledge’ premise.

Medical event

Medical negligence

Compensation to patients for medical events

In Sweden, the compensation that a patient is entitled to consists of two general components: pecuniary and non-pecuniary damages (for pain, suffering, disability) damages. Compensation for loss of income or future loss of pension is paid as annuity.  The amount of compensation was – in 2019 – limited to a maximum of 46 500 000 SEK (approx. 4 430 000 EUR) for each medical event, and a further limit was set for each patient (to a maximum of 9 300 000 SEK – approx. 28 580 EUR). These amounts are determined yearly and based on a price index.

In Poland, the maximum benefit amount (compensation and redress) arising from one medical event for one patient in case of infection, bodily harm or health impairment amounts to 100 000 PLN (approx. 23 550 EUR). If the patient died, it cannot exceed 300 000 PLN (approx. 70 660 EUR). The patients are not entitles to a pension. Furthermore, in both cases, in order to effectively accept the compensation proposal, the patient needs to submit a statement waiving all claims for monetary damages for any harm that may result from the event recognised by a committee as a medical event in respect of damage revealed after the date of filing an application.

There is no limit as to the amounts of compensation, redress and pension that a patient may obtain after bringing a medical negligence claim before a Polish court, however, the minimum guarantee sum of the obligatory civil liability insurance for hospitals amounts to 100.000 EUR for one event.

Proceedings before the Patients Claims Panel and the DCAMEs

In Sweden, referring a case to the Patients Claims Panel is preceded by reporting the damage to the insurer. If the patient is not satisfied with the decision of the insurance company, he can ask the Panel to examine the case or immediately bring a lawsuit to court.

Bringing a claim before the Panel is free of charge for the patient, however, the attorney’s fees are not covered by the Patients Claims Panel. The proceedings take place in writing, although in exceptional cases, should the Panel consider it advantageous for the proceedings, the patient may be heard. All cases are handled under a duty of confidentiality. The average processing time is six months, although in some cases it might be extended. Even though the Panel’s decision is only advisory for the parties, there is a high level of compliance and, in most cases, the insurance companies follow it.

The use of an extra-judicial route such as the Patients Claims Panel does not exclude taking subsequent legal actions before the Swedish courts. The Panel’s decision can be used as evidence in court. During legal proceedings, Swedish courts have the authority to ask specific questions to the Patients Claims Panel before ruling on a case – a right seldom exercised.

Members of the Panel are appointed by the Swedish government. The chairman is, or has been, a judge within the Swedish court system. The patients are represented by three members appointed by the parliamentary parties. Other members include: a medical expert, a county council politician with special knowledge in healthcare and a member who is particularly knowledgeable in matters of personal injury settlement (usually an insurance lawyer or claims adjuster at an insurance company). This last-mentioned member is not appointed by the Swedish government, but rather by the Patient Insurance Association.

Polish patients are also offered a choice: they can report the damage either to the insurer or directly to the DCAME, or bring a lawsuit to court. In theory, the DCAME’s decision is to be issued no later than 4 months from the date of filing the application, but in practice the majority of proceedings last longer – even up to several months. It is a consequence of the fact that, during the proceedings, the DCAME considers many items of evidence: mainly medical documentation, but also witness statements, hearing of the parties and expert reports, applying  the Code of Civil Proceedings.

There are 16 such committees in Poland, each of which consists of members appointed by the voivode (14 persons), the minister responsible for health (1 person) and the Partner Rights’ Ombudsman (1 person). Eight members have experience and education within various medical fields, eight – within the field of legal sciences. The committee has jurisdiction with a 4-seat composition.

Proceedings before the DCAMEs are carried out in two instances. The parties have the right to submit a reasoned request for a retrial. Considering the application for a retrial does not involve a member of the panel who participated in the issue of the contested decision.

Submission of an application is subject to a fee of 200 PLN (approx. 47 EUR). The losing party bears the costs of the proceedings, which are, however, much lower than the costs of court proceedings and in practice limited to a flat-rate renumeration of experts (up to 450 PLN – approx. 105 EUR – for one expert report).

The purpose of the proceedings before a Committee is to determine whether the event which resulted in a pecuniary or non-pecuniary damage was a medical event. The Committee does not determine the amount of due compensation and redress. It is the entity running a hospital who submits a proposal of compensation to the applicant. Submitting a proposal with any amount – within the maximum limits set by the application and the Act – even a symbolic amount, is treated as fulfilment of the statutory obligation by the entity.

The Committee’s decision has no preliminary value neither in liquidation proceedings nor court proceedings, where it is only treated as evidence from an authentic instrument.

Time limits

Currently, anyone who wants to pursue compensation for a patient injury must commence proceedings within ten years calculated from the time when the injury was caused. If the patient reported the injury to the healthcare provider or to the insurer within the time limit specified above, the time limit for bringing the claim before the Patients Claims Panel is six months from the moment when the patient has become aware of the insurer’s final position on the claim. The limitation period is interrupted by bringing the case before the Panel.

In Poland, the application to a committee must be filed within one year from the date on which the applicant learned of the injury or from the date of the patient’s death, but the time limit cannot exceed 3 years from the date of the event resulting in personal injury or the death of a patient. In case of a patient death, the one-year period does not run until the end of the succession proceedings. Submission of an application interrupts the limitation period specified in the provisions of the Civil Code for bringing claims arising from the events covered by the application only if the application resulted in the Committee issuing a decision declaring a medical event. Thus in practise (in an extreme situation) the defendant may successfully refer to the limitation period during subsequent civil proceedings, if the Committee’s decision, issued following lengthy proceedings, was unfavourable to the patient – since the general limitation period is 3 years from the day on which the aggrieved party learns of the damage and of the person obliged to remedy it.

What the experts say

Joakim Jaderstróm: The procedure before the Patients Claims Panel has its advantages and disadvantages. When the liquidation proceedings before the insurer conclude, the patient has a choice whether to turn to the Panel or submit a claim to court. Proceedings before the Panel and the opportunity to obtain the position of experts provides the patient with additional data useful when asserting the claim by way of legal action. As the procedure itself is free of charge to the patient, the proceedings are available to all – regardless of one’s financial position. However compensation for legal fees may not always be obtained from the legal protection insurance and the Panel does not reimburse these costs. This certainly puts the patient in a less favourable position in comparison with the insurance company. Furthermore, given the often complex medical matters, it is every so often advantageous for doctors and other experts to be heard orally during the proceedings, which usually is not possible before the Panel.

Jolanta Budzowska: The fundamental difference between the functioning of the Swedish Patients Rights Panel and the Polish DCAME is the effectiveness of their decisions. In both countries the decisions are not binding, nonetheless Sweden boasts a high level of compliance. There is a simple reason why this cannot work in Poland in a similar way: our hospitals are often unable to (and are unmotivated to) pay out compensation for a medical event out of their own budget, since an unsatisfied patient might at most take the case to court and obtain a favourable judgement against the insurer, who – at the will of the legislator – did not participate in the proceedings before the Committee. A common feature for both models of   extrajudicial claims settlement – the possibility to obtain evidence that may later be relevant in court proceedings (a feature beneficial to the patients), is meanwhile heavily criticised in Poland.

A glance at statistics

In 2018 the Patients Claims Panel received 1 801 cases. There is no official statistical data as to how many of these ended with awarding compensation to the injured party. It is estimated that in previous years the Panel recommended that the compensation be granted in 10% of claims and that just under 50% of claims are rejected on a per annum basis on the grounds that they do not satisfy eligibility based on the avoidability rule.

In Poland, during the DCAME’s first term of office (in the years 2012-2017), the Committees assessed 896 applications on a yearly average (not including applications for retrial), out of which in 20% of the cases a medical event was determined (164 on a yearly average).

Thus, if we calculate the number of inhabitants (10,12 milion in Sweden, 37,98 milion in Poland – data as of 2018), the Patients Claims Panel receives over seven and a half times more cases per year than the DCAMEs in Poland.

Conclusion

The Swedish Patients Claims Panel aims to promote fair and consistent application of the  provisions of the Patient Injury Act regarding compensation for injured patients. Analysis of relevant regulations and of the practice shows that even though the Panel’s opinions operate as recommendations only, these objectives are successfully achieved thanks to a wide access to the procedure and a workable system of financing compensation from insurance companies’ funds.

In Poland, according to a report of November 2018 prepared by the Supreme Audit Office (Naczelna Izba Kontroli, NIK), “the extrajudicial system of adjudication on medical events by the district committees does not provide the patients with an effective route for quickly obtaining compensation and has not become an alternative to the judiciary”. However, it is worth noting that the number of cases filed with first instance courts, qualified by the courts as “civil cases for compensation for damages caused during the provision of health care” has remained at a similar, or even at a lower level throughout the DCAMEs first, six-year term (971 cases in 2012 and 857 cases in 2018). Thus a rhetorical question must be asked: how many cases would have been filed if it weren’t for the DCAMEs? The committees have considered at least as many cases as the first instance courts on average per year during their first term.

Nonetheless, it is difficult to disagree with the generally negative assessment of the functioning of the Polish extrajudicial compensation system for patient injuries caused by medical event. The Ombudsman of Patients’ Rights shared NIK’s concerns and proposed constructive changes. Based on the Swedish experiences with no-fault compensation, it is safe to say that a similar model would only be effective in Poland if – in line with the Ombudsman’s request – a guarantee fund is set up. The fund that would provide cover for fair compensation: a socially acceptable level of redress for harm suffered, allowing the patient to recover and resume normal social function. It would need to operate independently of insurers and medical entities, similarly to as it is in Sweden. Otherwise, we will be facing the same problems as today: both DCAMEs decisions addressed to hospitals and liquidation proceedings before the insurer are ineffective in settling the patients’ claims extrajudicially.

In the meantime, the DCAMEs, unwanted children of the Polish extrajudicial route of claiming compensation, are doomed to extinction due to a complete lack of amendments to the Act on patients’ rights. It is preposterous that the committees were forgotten by the Parliament when adopting the latest, significant amendment to the Code of Civil Proceedings. As a result, Article 67o of the Act on patients’ rights contains reference to civil procedure provisions that are inexistent. Meanwhile, injured patients await real possibility of obtaining compensation for medical events, medical personnel await a truly Swedish no-fault scheme and we all await legislation on quality in healthcare. How about we stop learning through hands-on experience and start reproducing winning solutions, already established in other countries, on the Polish ground? No i cóż, że ze Szwecji?*

* A popular Polish tongue-twister. Its literal meaning is: And so what if it’s from Sweden

Jolanta Budzowska, BFP Attorneys at law        

Joakim Jäderström, Legare Advokatbyrå AB[1]

 


[1] The authors are lawyers specialised in personal injury law, representatives on the general board of PEOPIL (Pan European Organisation of Personal Injury Lawyers)

 

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