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.]

New, out-of-court path for medical malpractice compensation

Jolanta Budzowska29 August 2023Komentarze (0)

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

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:

  1. first-degree relatives – i.e. daughter, son, mother, father
  2. a non-separated spouse
  3. adoptee or adopted person
  4. 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.

Future loss compensation in Poland – a case for reform

Michał Krzanowski13 April 2023Komentarze (0)

Under Polish law, compensation for pecuniary damage includes both the losses suffered by the injured party (damnum emergens), the benefits that s/he could have achieved if the damage had not been caused (lucrum cessans), as well as future expenses which need to be incurred due to the victim’s health.

In more basic terms, when someone is wrongfully injured, they should, in all circumstances, be compensated in full for their losses. This is what we lawyers usually refer to as the full compensation principle (and which we already referred to on our blog in the past).

However, as it turns out, the application of said principle may at times be…less than perfect, making personal injury victims in Poland wish they could bring their claim in another jurisdiction.

In particular, when it comes to those heads of future pecuniary loss that are permanent, recurrent, and not expected to cease in the foreseeable future at the time when judgment is passed, the court awards periodical payments, called renta. These apply to, and may include, both increased needs and loss of earnings, depending on circumstances.

The amount awarded is determined based on the circumstances at the time when judgment is passed. It may be adequate at the time, but will that remain true 2, 5 or 10 years afterwards? Even if the victims needs do not change substantially in that time, natural processes, such as earnings inflation or a decline in the purchasing power of money, may often devalue the award, depriving it of its adequacy.

Apart from very rare and very specific cases, it is not possible to substitute this periodical payment system for a one-time lump sum award, which could have a specific discount rate applied to account for inflation etc. Moreover, there is no annual indexation of periodical payments awarded by a court.

The only recourse that a victim of personal injury in Poland has is the right to sue for an adjustment of the periodical payments awarded by a court, subject to a change of circumstances that impacts that award, and that could not have been taken into account under the previous dispute.

While courts have often agreed that either earnings inflation or a decline in the purchasing power of money may be sufficient reasons to seek an increase of previously awarded periodical payments, it is generally pointed out that these should be significant; otherwise, they will not warrant any modification of the award. What can or cannot be considered “significant” is always for the court to decide, at its discretion.

Understandably, this is less than ideal. While it may never be possible to achieve perfect compensation of future loss (i.e. neither overcompensating, nor undercompensating the victim), given the position in Poland, as described above, it is worthwhile to look at how other jurisdictions are tackling this issue.

In England, for example, there is a Personal Injury Discount Rate. It is used by courts in assessing the size of lump sum awards in significant personal injury cases (i.e., those whose impacts are large and likely to persist for long periods).

Further to that, instead of a periodical payment system, victims of significant personal injury in England will receive a one-time lump sum award for their future losses, with a discount rate applied, that is intended to reflect the likely real rate of return over the period of the award to ensure the claimants needs are met, without over or under compensation. The real rate of return is the expected nominal investment returns adjusted for the expected future rate of inflation[1].

While not perfect, this method of compensating future loss will likely be more accurate than awarding periodical payments in an amount that is adequate only at the time when they are awarded, and which are – apart from new, significant developments – quite difficult to adjust. This will be particularly true when the needs or losses persist over long periods of time, and therefore, in practically all significant personal injury cases.

What is more, even if the latter weren’t true, and the parties could sue for a modification of the periodical payments subject to not-so-significant changes of circumstances, this would still be far from ideal, as it would mean that the courts would likely be flooded with lawsuits (often fairly complex as to what the adjustment to the award should be).

Certainly, the English way is just an example of how to better achieve the principle of full compensation, and not the only one that can be considered. Other jurisdictions use yet different methods, such as applying multipliers to a lump sum award for certain future losses, which combine factors such as the duration of the loss, social benefits to which the injured person is entitled, risk of death based on their degree of disability, and an interest rate, which takes inflation into account.

Having said that, it is quite clear that the Polish system of future loss compensation is in need of an overhaul, and with a much higher focus on achieving full compensation.

[1] https://www.gov.uk/government/consultations/personal-injury-discount-rate-exploring-the-option-of-a-dualmultiple-rate/personal-injury-discount-rate-exploring-the-option-of-a-dualmultiple-rate#introduction

Constitutional right to defence vs. duty of self-incrimination

Jolanta Budzowska27 December 2021Komentarze (1)

In court proceedings, witness statements are the primary evidence. They must therefore be reliable and accurate. Because of the importance of this testimony, it is understandable that the laws of various countries impose an obligation on witnesses to tell the truth and a prohibition against concealing the truth under penalty of law. Polish criminal law punishes violations of this obligation with imprisonment of up to 8 years (Criminal Code art. 223 § 1).

However, a problem can arise when a witness, such as a doctor, testifying in a medical malpractice case, fears that telling the truth, revealing it, will lead to charges against him.

Obviously, according to Article 183 § 1 of the Criminal Procedure Code, a witness may decline to answer a question if, in his opinion, answering it could expose him or a person close to him to criminal liability.

But what if a witness, fearing that he will be charged, instead of refusing to answer a question, lies or suppresses the truth?

As of 2016, this issue is regulated by Article 223 § 1 a of the Penal Code, according to which ‘If the perpetrator of the act referred to in § 1 testifies falsely or secrets the truth out of fear of criminal liability threatening himself or his immediate family member, he is subject to the penalty of deprivation of liberty for between 3 months and 5 years.’.  It can be said that this provision imposed a duty on witnesses to self-incriminate.

In addition, such a provision may lead to the temptation to call potential suspects as witnesses first because they face criminal liability under this provision for making false statements.

This regulation has been controversial from the beginning due to the fact that it is impossible to reconcile it with the constitutional right to defence contained in Article 42(2) of the Constitution of the Republic of Poland and stipulating that ‘Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings (…)’.

The Ombudsman, who also recognised the problem of incompatibility of Article 233 § 1a of the Criminal Code with the constitutional right to defence, went even further and alleged that this provision is incompatible with international and European law, namely with Article 14 § 3 (g) of the International Covenant on Civil and Political Rights and with Article 6 § 1 of the Convention on Human Rights and Fundamental Freedoms (Position of the Ombudsman for the Constitutional Court in the case initiated by a legal question from the District Court in T. ref. no. P 4/20).

Moreover, the regulation introduced in 2016 is contrary to the thesis contained in the resolution of the entire Criminal Chamber of the Supreme Court of 20 September 2007, I KZP 26/07, which reads: “A person does not commit the offence of false testimony (Article 233 § 1 of the Criminal Code) who intentionally gives false testimony concerning circumstances relevant to the exercise of his right of defence (Article 6 of the Criminal Procedure Code)”, which was followed by other courts in making their judgements.

The problem was recently addressed by the Supreme Court, which issued a Resolution of November 8, 2021, composed of 7 judges, giving effect to the legal principle, which reads:

“A witness who gives false testimony out of fear of facing criminal liability does not commit an offence under Article 233 § 1a of the Penal Code if, in exercising his right of defence, he gives false testimony or conceals the truth without at the same time exhausting with his conduct the elements of a prohibited act specified in another provision of the Act.”

Thus, the Supreme Court has taken the position that a witness who fears the threat of criminal liability has the right to exercise his right of defence and lie when giving testimony. This principle is binding only for all compositions of the Supreme Court, although it is not without influence on the case law of common courts (Order of the Supreme Court of 17.05.2019, V CZ 23/19).

At present, another problem also arises, namely whether the legal principle expressed in the Supreme Court Resolution of 8 November 2021, ref. I KZP 5/21 will be applied due to the disputed composition of the judges who issued it. The answer to this question will be provided by practice.

Finally, it is also worth mentioning that the constitutional right to defence does not extend to the falsification of medical records. If, for example, a doctor falsifies medical records and is subsequently charged with a medical mistake, he will be held liable both for the medical mistake and, independent of liability for the medical mistake, for falsifying medical records (Article 271 of the Penal Code/270 of the Penal Code).

[author: Aleksandra Lipien]

 

Let’s talk about accommodation

Michał Krzanowski03 December 2021Komentarze (1)

Accommodation claims in personal injury cases are still not very common in Poland. Moreover, when they are pursued, they usually boil down to adaptation of a home or flat, rather than purchase of a new real property.  Is there a good reason for that, though?

First things first, under Polish law there is the principle of full compensation. Further to that, all necessary legal basis for an accommodation claim – be it for the adaptation or the purchase of a real property – to be allowed, is in place.

In a way, this is confirmed by the judgment of the Supreme Court dated 13 September 2007, case reference no III CSK 109/07. In this case the Claimant, who became disabled following an RTA, was awarded a sum necessary to purchase a new real property (a flat), of 140 000 PLN, and then also an additional sum to adapt it – 35 000 PLN (175 000 PLN in total for the accommodation claim alone).

This does not yet mean that sufficiently proving such a claim is easy, though, and particularly so when it comes to the purchase of a new real property.  In such cases the court would most certainly require proof that the purchase is necessary and justified. It could be said that in order for such a claim to be successful, in given circumstances there should be no other reasonable choice than to purchase a new real property.

As an example, we are currently litigating a case where our Client is pursuing the costs of purchase of a new real property, instead of adaptation, and this is mainly because he does not own any real property. He is living in his parent’s house, which they generously allow, but which he obviously cannot adapt, even if he wanted to/had the resources necessary to do it. Naturally, the currently occupied real property also does not suit his needs, resulting from his disability, so it is indeed necessary to purchase a new one. The case is currently still ongoing, but we are hopeful for a positive outcome, and will make sure to report on it once available!

The good part is that, other than any potential indemnity limits, there are no caps on what can be recovered in regard to such a claim. Moreover, the court, if allowing the claim in principle (if sufficient proof is provided), should consider, among other things, the country where the Claimant actually resides, and award a proper amount. This means that if a Claimant residing in another country was succesful in litigating such a claim in Poland, in my opinion the Polish court should award an amount that allows for the purchase of a real property in that country, and not one in Poland (the latter of which would probably not be very helpful to the Claimant).

Having that in mind, what seems like the biggest obstacle to claims concerning costs of purchase of a new real property is the requirement to prove that such purchase is indeed necessary and justified, contrary to, in particular, adaptation. The latter is usually significantly cheaper, and there is no doubt in my mind that this impacts the court’s decision, sometimes heavily. It would be my hope that, moving forward, more weight will be given to compensatiing tort victims fully – even if it is costly.

 

The way to serve

Michał Krzanowski05 March 2021Komentarze (0)

Serving proceedings on a Defendant in another EU Member State may be a rather complicated matter, despite the commendable legislative efforts aimed at making this as seamless as possible.

The most current efforts in question boil down mostly to the Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000[1].

Based on article 4 of the Regulation No 1393/2007, while not the only possible method, service of proceedings may be effected on a Defendant in another Member State through official Transmitting and Receiving agencies, which every Member State should establish.

Specific ways of effecting service, as well as the aforementioned agencies, vary greatly depending on the jurisdiction. For example, in France, service may be effected by a local court official (huissier de justice). When it comes to Poland, the rule is that service of proceedings may only be lawfully effected by a court, and therefore the Transmitting and Receiving agencies are in general the district courts (sądy rejonowe). There is no exactly similar position to a huissier de justice in the Polish legal system; the closest equivalent would probably be a court bailiff, although they do not serve proceedings, except for very specific circumstances, and only subsequent to a proper court order (thus making the courts still essential to the process). Attorneys-at-law, as well as notaries – i.e. professions that in some other jurisdictions may serve proceedings – also cannot do so lawfully in Poland.

Being left with only one option – i.e. service through the courts – can indeed complicate matters, in particular when time is of the essence. Courts are not generally known for swift action, and therefore securing ample time for service on a Defendant in Poland is always a prudent thing to do.

[1] consolidated text: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02007R1393-20130701

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