The personal injury team at the BFP law firm specializes in every kind of personal injury case where the injury occurred on the territory of Poland. We have represented, and are still representing, hundreds of clients across Poland, as well as residents of other countries, that seek compensation for their injury resulting from medical negligence, road traffic accidents, aviation accidents, defective products, and others. [Read more.]

Brexit and its influence on Poland: cross-border cases in the field of personal injury

Jolanta Budzowska15 July 2016Komentarze (0)

The subject of Great Britain saying farewell to the European Union and the conditions on which it intends to do so to this day remains on the front pages of newspapers.

It is a matter which the Brits, the Poles and the citizens of the remaining EU Member States care about on an almost equal level. Perhaps it’s the Poles who are the most commited, which is in a large part a result of the quantity of our countrymen living abroad on the British Isles. But does Brexit have anything to do with personal injury cases?

Quite a lot actually.

As I mentioned, the Isles are home to a great number of Poles who often visit their families. Poland is also an attractive country for British tourists. This phenomenon causes a large increase in the number of foreigners briefly staying in Poland: many of the current residents of Great Britain visit our country and spend a few or even dozens of days every year. Their motives for coming here vary. As a consequence, their involvement in traffic or hotel accidents on the Polish soil gets reported as if it normally would.

And that raises an important question: what if a resident of Great Britain becomes a victim in an accident on the territory of Poland?

Before we get to that question, let me ask another one. We’re currently witnessing an up-and-coming trend for health tourism. The quality of the Polish medical services is relatively high, while the prices are significantly lower than the ones in the UK, especially in regard to esthetic medicine and dental care. What is more, the Poles who have a permanent resident status on the Isles also often tend to undergo treatment in their home country during their visits or during holidays in Poland.

What if a medical error is made during their treatment?

The foregoing and current system (until Brexit becomes a formal and actual fact), is based on the provisions of the European law. Once they’re out of the picture, there won’t be any grounds for the Brits and the Poles, who have a permanent resident status on the Isles, to sue the Polish insurer of the vehicle involved in a road traffic accident, or of a doctor/hospital, or even the tortfeasors themselves, in Britain – just as they used to do so far (on the grounds of the Brussels I. Regulation). The law of the country where the damage occurred will remain the applicable substantive law, just as it currently does on the grounds of the Rome II. Regulation, but…

…the actions will have to be brought before the Polish courts…

Pursuing compensatory claims in Poland differs greatly – disadvantageously for the victims – from the possibilities that the common law system provides.

All that is left is to remain hopeful that the negotiated conditions of Brexit will allow the UK and Poland to keep the current relations between them, at least when it comes to those regulations which have passed the test of time as a part of the European Union’s legal system.

Limitation periods, or how to make time when you need it most

Karolina Kolary12 July 2016Komentarze (0)

Medical negligence cases are the bread and butter for the Personal Injury Team at BFP. It has to be said however that cross-border medical negligence cases are overall far more scarce.

It is never easy to write about such cases, as usually the consequences of medical negligence are dire. Nevertheless, we will do our best to describe one specific case that our Team has worked on fairly recently.

A young woman who is a resident of the UK experienced acute, severe abdominal pains during her short visit to Poland. Subsequently she made an appointment with a local gynaecologist. The doctor performed an ultrasound scan and did not notice anything out of the ordinary.

Just a couple days later the woman was admitted to a hospital due to extensive bleeding from her genital tract. Surgery was performed, revealing an ectopic pregnancy in the fallopian tube, which caused the fallopian tube to rupture, leading to a massive, life-threatening hemorrhage. The woman’s condition was critical, however fortunately the surgery was successful, and the post-operation convalescence period went smoothly. Health was restored and life, though threatened, was saved. The woman will however never be whole again, as the ruptured fallopian tube had to be removed completely during the surgery.

The woman returned to the UK and sought legal assistance from local law firms in order to pursue compensatory claims from the doctor who failed to diagnose the ectopic pregnancy during the ultrasound scan. Had he done so, the pregnancy would be treated earlier, thus likely preventing the rupture of the fallopian tube and all the consequences thereof.

As it turned out however, when the case was brought to our attention there was not much time left before the statute of limitation on the claims would expire, in accordance with Polish substantive law (which law is applicable in the case at hand, since Poland is the country were the damage occurred*). Our advice was therefore to quickly interrupt the statute of limitation by filing a motion for a summons to a conciliation hearing (in Polish: wniosek o zawezwanie do próby ugodowej).

The aim of such a motion is for two conflicted parties to fairly easily and quickly conclude a settlement before a court. A side-effect of such a motion is the interruption of the limitation period on the claims specifically mentioned by the applicant in the motion – even if for any reason the settlement does not end up happening. When the limitation period is interrupted in such a way, it begins to run anew from the date of the interruption, giving the aggrieved significantly more time to file a complaint.

Upon receiving proper instructions, the Personal Injury Team at the BFP law firm drafted and filed a motion for a summons to a conciliation hearing, which did indeed result in the interruption described above.

To our knowledge the case has still not concluded, and we hope to assist further on matters related to the Polish law. As such, we may have updates for you in the future – stay tuned!

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*Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)

Sometimes it does not matter how well you are trained…

Jolanta Budzowska08 July 2016Komentarze (0)

In one of our cross-border road traffic accident cases, the personal injury team represented a client who was injured in a serious RTA that occurred in 2012 in Gdynia, Poland.

Our client in this case was a citizen of the United States of America and a soldier of the elite Navy SEAL force. He was travelling by car with his colleagues from the force; the reason for their visit in Poland was to instruct and train Polish soldiers. The accident occurred as their vehicle was struck from the side by another driver who, as it later turned out, was driving under the influence, and missed a red light on the crossroads.

Our client unfortunately sustained the most serious injuries out of all of the participants. These injuries included, among others, brain damage, which despite rigorous and lengthy treatment and rehabilitation, has unfortunately resulted in aphasia. Aphasia is a disorder that mainly affects the ability to speak and read fluently. Thankfully, extensive treatment and rehabilitation in the United States has greatly improved our client’s condition, however the disorder is permanent, and some deficits are likely to persist permanently.

The case introduced significant challenges due to its many cross-border elements. The accident occurred in Poland, but was caused by a German citizen, whose car was registered in Germany and insured by a local insurance company. On top of that the injured party was a citizen of the United States of America, therefore not a Member State of the European Union. These specific circumstances meant that issues such as applicable law or jurisdiction were far from straightforward.

Initially however we decided to try and settle the case out of court, and in order to do so, we have contacted the insurance company based in Germany directly. Communication proved to be challenging in the beginning, however the insurer quickly appointed a Polish attorney to represent them in the settlement negotiations. From there we were able to conduct fairly smooth negotiations, which fortunately did end with an agreement that felt satisfactory to all parties.

In Poland, settlements in personal injury cases are extremely rare, which is important to keep in mind whenever the final outcome of this case would be considered. The amount paid to our client on the basis of the settlement was 175.000 EUR, which is slightly more than 700.000 PLN. Polish courts rarely award such high sums in personal injury cases, much less would such sums be agreed upon in an out of court settlement. In our experience the insurer in Poland is usually willing to voluntarily pay only a small fraction of the compensation that is later awarded in court, but in this case, it would seem we had the quite opposite situation.

While the harm of our client resulting from the accident was undoubtedly severe, it is highly unlikely that a Polish court would award redress (i.e. compensation for strictly non-pecuniary damages) in an amount exceeding 700.000 PLN; it is more likely that the award would be lower, perhaps even significantly so. It also cannot be overlooked that a trial in this case would surely be a lengthy and difficult one.

Having that in mind, the settlement that was concluded in the end can be reasonably considered as a very positive outcome.

On the wings of justice

Jolanta Budzowska08 July 2016Komentarze (0)

As far as aviation personal injury cases are concerned, undoubtedly the most important and prominent one for our personal injury team would be the case of the emergency landing of a Boeing 767 aircraft at the Okęcie Airport in Warsaw in 2011.

The aircraft, piloted by Captain Tadeusz Wrona, had a belly landing on 1 November 2011. Handling the case was a cooperative effort, as the injured parties were represented by the Wisner Law Firm based in Chicago, Stewarts Law based in London, as well as our personal injury team at BFP on the Polish side – all specialising in aviation accidents and claims connected therewith.

The litigation was initiated by a civil claim filed in the United States Circuit Court of Cook County, Illinois, County Department, Law Division by the US attorney acting for the passengers, namely Att. Floyd Wisner of Wisner Law Firm. The lawsuit was filed on the first anniversary of the accident (i.e. on 1 November 2012) against the manufacturer of the aircraft, Boeing Company, as well as the servicing company, Mach II. When the claim was filed, the group of the plaintiffs constituted of 95 passengers. Subsequently there joined other plaintiffs who were successively added to the claim.

The first court action of the Defendant, Boeing, was making a third-party claim against the Polish airline, LOT. Boeing argued that LOT was at least partially responsible for the accident and for the loss borne by the passengers. This litigation technique was to increase the chances of success of a Forum Non Conveniens application, which was subsequently filed by the Defendants. The latter aimed at transferring the case to the jurisdiction of another country. Such an application is based on the assumption that the pending case has more ties with another country than the one where the claim was initiated, and therefore it is justified to transfer the case to the competence of another court. In this case, Boeing sought to transfer the case to the jurisdiction of the Polish courts, arguing that there were more factors connecting the case with Poland than with the United States.

The previously mentioned third party claim, in accordance with the US provisions, led in fact to the matter being referred to the state court of a higher level (i.e. United States District Court, Northern District of Illinois, Eastern Division) – since the third party (LOT airlines) had its registered office abroad (in Poland). The latter court was to render the decision to transfer the case to the Federal Court. In turn, the chances to have the Forum non Conveniens application granted in the Federal Court are in principle higher than in state courts. In response to such actions on the part of the Defendants, the attorney for the Plaintiffs sought to pursue the case in the state court and, consequently, applied to the court to separate the cases filed on behalf of the passengers against Boeing and that filed against Mach II (main action) from the third party claim against LOT airlines. Granting this motion would allow to pursue the claims with the first case in the state court (without the participation of LOT there was no reason that the case came before the Federal Court), which would in turn increase the chances of dismissing the application of Forum non Conveniens. The court rejected the application for the separation of the cases, however the subsequent conclusion of the settlement by the parties caused that this issue has ultimately turned out to be irrelevant.

In the end, the number of the Plaintiffs in the actions initiated in this case in the US exceeded 130, with a total of 103 Plaintiffs being retained directly by BFP.

It should be pointed out that this court action is not regarded as a strict class action, but rather as the claim with multiple plaintiffs. This is due to the fact that the damage borne by each Plaintiff was separate and had a different scope.

What is also worthwhile to note is that bringing a lawsuit before a Polish court was in this case highly inadvisable, because then it would be necessary to sue the carrier, i.e. LOT airlines. The passengers’ claims with respect to the carrier are subject to the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), which does not allow claims for non-pecuniary damages (emotional distress, negative experience, trauma); while this type of injury was the predominant element of the claims of all passengers. For the same reason it was not in the interest of the Plaintiffs to have Forum non Conveniens granted by the US courts.

The dispute was ultimately settled between the parties. The settlement is subject to confidentiality, therefore we cannot provide any information about its terms and conditions.

Too much metal will hurt you

Jolanta Budzowska08 July 2016Komentarze (0)

Product liability cases are probably among the most diverse types of personal injury cases; perhaps even the single most diverse. Nevertheless, it is easy to identify that our personal injury team has dealt with one specific kind of defective product above all others, that being hip implants.

Several defective models of hip implants were officially recalled over the recent years due to abnormally high revision rates just a couple years after the implantation. As it turns out these recalls are largely connected with metal – on – metal implants, which can pose a serious health hazard if the components wear down more rapidly than anticipated. As a result, many unfortunate patients find themselves with drastically elevated blood cobalt and chromium –two metals that are very often used in the construction of such implants – which is understandably not irrelevant to their state of health.

Our personal injury team is currently representing several clients that sustained injury due to such defective implants, with additional clients joining the group on a regular basis. The cases are not limited to just one single brand of hip implants, or even to one single manufacturer. The common ground in all of these cases seems to be the aforementioned rapid deterioration of the metal components, which leads to cobalt and/or chromium metallosis. Most of the patients also suffer from a pseudotumor around the implant which needs to be removed during the revision surgery. Another shared factor would be that the clients are recommended to revise just a couple years after the initial implantation, despite the fact that the implants were supposed to last even for decades.

All of the claims are being pursued separately and out of court, with the aim of reaching a comprehensive settlement agreement. Some of our clients already enjoy the benefits of such resolutions, however we cannot provide any details in regard to the terms and conditions of the agreements, as they are protected by confidentiality.

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