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:
- first-degree relatives – i.e. daughter, son, mother, father
- a non-separated spouse
- adoptee or adopted person
- 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.
Dzień dobry!
{ 0 comments… add one now }