Medical tourism is increasingly popular, as it is now easier than ever to both travel and to find connections with various healthcare services providers all around the world. Inevitably, for some of the patients the trip will not end well, and they may end up wishing that they had stayed home instead…
This part of the guide and the following two posts are an excerpt from a presentation delivered by Atty. Jolanta Budzowska at this year’s annual PEOPIL Tourism and RTA Conference in Frankfurt. Its aim was to take a closer look at the options that are available to a patient that has been injured as a result of treatment carried out in Poland, and in particular at how one would approach verifying the chances of success in a medical negligence case, when Polish substantive law is applicable.
Step 1. Medical records challenges.
Before anything else can even be considered, by far the most important step is to obtain the entirety of the medical records. Under Polish law each and every patient has a right to obtain his or her medical records, and the request is not subject to any verification; it also does not have to be substantiated. There are no requirements in regard to the form of the request, and it can even be an oral request, but in my opinion the most efficient way is to send a letter directly to the appropriate healthcare services provider – be it an individual practitioner, or a hospital.
Unfortunately, despite clear regulations, practice shows that some medical records requests fall on deaf ears; in other cases, the records are disclosed, but upon closer review, they turn out to be clearly incomplete.
The manner in which medical records should be maintained is regulated very specifically by the law, and if the disclosed records do not comply with the regulations, it is best to lay out all of the flaws in another letter sent to the provider of healthcare services, requesting that these flaws are rectified. If this still turns out to be ineffective, or if no records have been disclosed at all, the next step for the troubled patient would be to reach out to the Patient’s Rights Ombudsman, a public institution that was created to protect patient rights, one of which is of course the right to medical records. The Ombudsman is empowered to demand the healthcare services provider to disclose medical records, and also to impose certain sanctions whenever it is found that patient rights have been infringed; in my experience the Ombudsman’s intervention has always lead, in the end, to the disclosure of all medical records.
Step 2. Case analysis. Fault-based liability system requirements. Expert evidence. Informed consent in Poland.
Now that we hopefully have the records in their entirety, we can proceed to analyze them, and the case itself as well. This analysis of course needs to be done with the prerequisites to liability in mind, and under Polish law, in regard to the general rules in respect of tort, those prerequisites are, first of all, fault – we have a fault-based liability system, secondly: damage, and finally, the causal connection between the tortious act and the damage.
Under the general rules, the standard of care is defined by what the current medical knowledge dictated – at the time of the act – and we try to ask and answer the question, what would a careful, diligent and knowledgeable doctor do when put in the same circumstances. Not achieving the expected result, or even causing certain damage, is not in itself enough to establish fault, since these consequences may have occurred without any fault on part of the medical personnel; some complications are simply unavoidable.
Whether a certain complication was avoidable or not, and in regard to all other matters that require medical knowledge, we of course rely on expert evidence, although what is very different from some of the other legal systems is that in Poland the court chooses the expert, and the parties have very little influence over who will be appointed. As a result, law firms often do not even maintain a database of expert witnesses. We also face increasingly serious issues of there being not enough experts available, since many of the medical personnel, and in particular the highly qualified personnel, would rather not dabble in providing expert evidence at all; it has to be said that the remuneration awarded to experts is not particularly enticing, and the responsibility of an expert is significant. In my experience certain medical specializations suffer from a particular deficit of expert witnesses, such as for example plastic/cosmetic surgeons.
But other than strictly medical issues, what also needs to be considered in each such case is the matter of informed consent, since performing any medical procedure without prior informed consent of the patient, entails liability for all consequences of said procedure, even it the procedure itself was carried out properly. This matter can be of particular significance for a medical tourist, as there is the potential issue of a language barrier. Under law, the healthcare services provider is obliged to provide the patient all of the information necessary to give consent, and such that the consent can be considered informed, in a way that the patient will be able to comprehend. In most cases consent should be obtained in writing, which comes down to the patient signing a specific, pre-prepared consent form. However, the form itself, even if signed, is often not enough to establish that the patient’s consent was informed, that is that the patient indeed had all of the relevant information prior to granting consent – prior to signing the document. In that regard, all kinds of evidence may be used in a trial when it comes to proving the scope of information given, or the lack thereof.
Barring extreme examples, any methods can be used to convey the necessary information to the patient, as long as all of the information is indeed understandable to the patient. For example, reading out the consent form, that the patient is then supposed to sign, to a patient that is blind and cannot read it himself or herself, has not been considered as a violation of patient rights by the Polish courts.
To be continued.
Dzień dobry!
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