Medical tourism: a 7-step guide for tourists injured in Poland (Part 2)

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, the previous [click!] and the following 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.

Medical tourism: a 7-step guide for tourists injured in Poland. Part 2

Step 3. Determining the defendant

After dealing with liability, the next step is to determine the defendant. In many cases this will be a certain legal person that runs the hospital. Determining all of that persons relevant details, including the address, is not problematic – these entities are listed in the National Court Register, with all relevant information being publicly available. 

However, in cases where treatment was provided by a doctor through an individual practice, or under a civil law partnership of several doctors, establishing the defendant’s address may prove difficult. Fortunately, all individual practitioners, as well as all partners in a civil law partnership, have to be entrepreneurs – they have to run their own business. Thus, information about their address can easily be found in the Centralna Ewidencja i Informacja o Działalności Gospodarczej (CEIDG; roughly Central Registration and Information on Business).The Central Registration and Information on Business is available publicly to everybody, and therefore establishing this registered business address should not be difficult.

Step 4. Identifying the insurance coverage provider

Naturally, a very important part of the defendant-establishing process is to also identify who provided insurance coverage to the healthcare services provider in question, at the time of the incident. Under Polish law the injured does have a direct right of action against the third-party civil liability insurer. Such insurance is obligatory under law in regard to all healthcare services providers. The provisions of the law also stipulate the minimum indemnity sum, which differs depending on what kind of entity is being insured – there is a different minimum sum for a hospital, than for example for an individual practitioner – currently these sums range between 30.000 and 100.000 EURO, for one event. 

It is of course possible to purchase additional, voluntary insurance, which some healthcare services providers do indeed decide to do, and this effectively increases the indemnity sum. For this reason it is prudent to always acquire all information about insurance coverage, not just of the compulsory type. In regard to voluntary insurance, if it was purchased, the exact terms and conditions that apply to that particular insurance contract will also be relevant, as there might be certain exonerating clauses there for the insurer. On the other hand, the compulsory insurance is governed by law, and the provisions provide that such insurance encompasses the vast majority of different kinds of medical treatment, although one particularly important exception is plastic/cosmetic 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.

Thankfully, there is a legal obligation for all providers of healthcare services to disclose information about their insurance coverage to each patient, upon their request. 

Step 5. The matter of limitation

Under Polish law a claim for damages in tort cases – if the damage was caused to a person – will become time-barred after a period of 3 years from the date when the injured party learned of the damage and of the person obliged to redress it. 

It is assumed that it is sufficient for the injured party to obtain information only about the occurrence of the injury and not about its extent and permanence of its consequences. However, the information still has to be sufficient for the injured party to formulate the claim, and to prepare a letter of complaint which fulfils the requirements of the law.

There are also two exceptions to the general rule of a 3-year long limitation period. The first exception concerns situations where the damage resulted from a crime – and in these cases the claim for damages will be time-barred after 20 years from the day on which the offence was committed, regardless of when the injured party learned of the damage and of the person obliged to redress it. 

The other exception pertains to cases where the damage was caused to a minor. Then the limitation period cannot terminate earlier than after the lapse of two years from the day on which the injured minor became adult – at 18 years of age, barring some exceptions.

When it comes to third-party civil liability insurers, the claim of the injured party is barred by limitation in accordance with the provisions on limitation for damage caused by tort – therefore, the general rules I just described. However, one thing that is different with regard to insurance companies is that actions of the injured party may result in an interruption of the limitation period vis-à-vis the insurer. These actions may take the form of either filing the claim with the insurer, or reporting the accident covered by the contract of insurance.

This method of interrupting the limitation period is unique to insurance companies, and does not apply to the tortfeasor.

The rules regarding limitation are different when claims are pursued not under tort, but under the contractual liability regime – which can potentially be of relevance to medical tourists, who may have entered into a specific contract in regard to the treatment in question.

To be continued.