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.]
The resolution, adopted by a panel of 7 Supreme Court judges, of 22 July 2020 (file ref. No. III CZP 31/19) reads:
A victim who suffered bodily injury or health impairment may claim compensationunder Article 444§1 of the Civil Code for the costs of care provided to him free of charge by persons close to him.
Implications for practice
Although the reasoning of the Court has not been published yet, the thesis of the resolution conveys what is most important: that the costs of care provided by the persons close to the victim shall be reimbursed by the perpetrator of the damage.
The Supreme Court resolution is not novel in terms of case law relating to pension. The courts have consistently included costs of care provided by the closest relatives in pension for increased needs (awarded for the future i.e. from the date of request for payment or filing a claim).
The Supreme Court has now further reinforced that the costs of care may be reimbursed retrospectively, as part of compensation. Of course, in so far as the claim has not become time-barred.
The Supreme Court has once again resolved an ambiguity in favour of the victims
The costs of care provided by closest relatives – “free of charge”?
It goes without saying that, if it is possible, it is the closest relatives who provide care to a child injured during birth or in an accident. The mother or father give up all other activities, often also their jobs, and devote their time to provide the victim with loving care and the best possible conditions.
Their care includes not only basic nursing activities. They often provide physiotherapy of a quality comparable to treatments carried out by physiotherapists working at the hospital. They substitute for a nurse. Provide emotional and mental support. It was therefore incomprehensible that the costs of care were born by the perpetrator only when the care was provided by a stranger and not when the caretaker was a person close to the victim.
The fact that the victim does not employ his relatives does not imply that the care is free – it undoubtedly affects the livelihood of the family. The “free of charge” care provided to a child by its mother has real economic value.
The Supreme Court has thus once again resolved an ambiguity in favour of the victims.
Resolutions adopted by a panel of 7 Supreme Court judges are not directly binding to courts hearing similar cases. They do however influence common courts with the reasoning and authority of the Supreme Court.
The recent, very informative article on compensation for passengers injured in road traffic accidents under Italian law, which can be found under the link below[1], certainly touched upon an important and practical issue. According to said article, passengers in Italy may in certain cases be deprived of a right to compensation claims for injury sustained in a road traffic accidentagainst the insurer of the vehicle they were travelling in, and in particular if the driver of that vehicle was not at fault. But how does this compare to the analogous provisions and practice in Poland?
The outset
In general, the provisions of Polish law introduce strict liability of the autonomous or dependent possessor of a mechanical means of transport propelled by natural forces (who may, but does not necessarily have to be, the driver) for damage caused in connection with the functioning of that means of transport. As a result, the injured party (the plaintiff) does not have to prove said possessor’s fault in order for him or her to be found liable, which also applies to the liability of the insurer. The reasoning behind such regulation is that possessing a mechanical means of transport propelled by natural forces (which include, among others, cars) is connected with certain risks, as said means of transport are prone to causing damage. Therefore the possessor of such means of transport should be held strictly liable for damage caused by the functioning of it.
The passengers, though
There are however certain exceptions from this rule, one of which concerns the claims of passengers specifically. It is provided in the law that if a passenger is transported by courtesy, then in regard to the legal relationship between the possessor of the vehicle and the person transported by courtesy, the liability regime “reverts” back to the general principles, which is the fault-based liability regime – naturally much less favorable for the injured party, as they are then under the burden to prove fault. The justification here is that a person should not have to bear negative consequences (in this case, be subject to a less favorable liability regime), when they have been acting out of altruistic incentives (agreeing, as the autonomous or dependent possessor of a vehicle, that someone else may be transported by courtesy).
But what does it actually mean?
The term “transport by courtesy” is not an easy one to define. Probably the most common issue concerns situations where the injured party was travelling as a passenger together with his or her family, as part of a leisure/holiday trip. In regard to such situations specifically, the judicature is of the position that this should not be considered as transport by courtesy[2]. Therefore, in such cases it is still possible for the strict liability regime to apply in regard to the claims of the passengers against the autonomous or dependent possessor of the vehicle (and their insurer).
The SARS-CoV-2 coronavirus pandemic continues to spread, affecting more and more aspects of our daily lives. Both courts and attorneys-at-law are no exception to this, and in that regard the provisions of the Act of 31 March 2020, famously dubbed as the “anti-crisis shield” act, affect deadlines – both court-set, as well as stemming from the provisions of procedural law – in a significant way.
Suspension of court-set and procedural law deadlines
In accordance with art. 15zzs(1) of said Act, during the state of epidemic danger or the state of epidemic, announced due to COVID 19, all such deadlines in, among others, ongoing court proceedings, shall not begin to run, and if they began to run, they will be suspended for the duration of these states.
This regulation applies once the Act comes into force, which – in regard to the provision in question – will take place once the Act is announced, and which has not happened yet, but is just a matter of time, and will likely happen very soon.
At the same time it is noteworthy that in certain cases, another provision of the Act, that being art. 15zzt, may introduce some significant practical difficulties, as it provides that the suspension does not apply to deadlines that “are connected with preventing, counteracting and combating COVID 19, and the crises resulting from them”. How this will be interpreted is entirely up in the air, however it seems fairly unlikely that court-set and procedural law deadlines in personal injury cases would be subject to this definition.
Statute of limitation on personal injury claims
These suspension regulations unfortunately do not apply to limitation periods on claims stemming from civil law provisions, including compensatory claims resulting from personal injury. Despite the fact that drafts of the Act included regulations that resulted in the suspension of limitation periods on civil claims as well, these were removed from the Act in the end. As such, injured parties need to keep in mind that limitation periods on their claims continue to run as usual.
Bracing for impact
The regulations regarding suspension of court-set and procedural law deadlines do seem necessary, as meeting these deadlines in the current circumstances indeed is, and will continue to be, quite difficult. This comes at a price, though, which will have to be paid by both the courts and the attorneys after the pandemic ends, when we will be faced with an accumulation of deadlines on an unprecedented scale. There is hope though for further regulations, which will allow for a smooth, steady transition out of the crisis, and back into normalcy – fingers crossed!
State of epidemic threat in the territory of the Republic of Poland.
When the city of Wuhan in China began to observe a spread of disease caused by a hitherto unknown virus at the end of November 2019, nobody suspected that soon after, in March 2020, the World Health Organisation will declare a global pandemic.
Following an emergence of the virus in Poland, the Act on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and emergencies caused by them entered into force on 8 March 2020. The state of epidemic threatdue to infections with SARS-CoV-2 virus, as from 14 March 2020 until further notice, was introduced in the territory of the Republic of Poland by the Ordinance of the Minister of Health of 13 March 2020, issued under Article 46 (2) and (4) of the Act on the prevention and combating of infections and infectious diseases among humans.
In practice, introduction of the above laws results in restrictions on transport, a ban of gatherings of over 50 people, an order to close bars and restaurants, cinemas and theatres, clubs, swimming pools, libraries, museums as well as restrictions on trade in shopping centres.
[update] On March 24th further restrictions were announced, including a ban on gatherings of more than two people (the ban does not include families), and a lockdown. The citizens are now only allowed to leave their homes for essential activities of life, such as i.e. commuting to work, shopping for food and medicine or walking the dog. Passengers in public transport must keep the distance of two rows of seats between each other and only a maximum of 5 people are allowed to be present at Church masses. These restrictions, introduced by the Ordinance of the Minister of Health of 24 March 2020, will remain in force at least until 11 April.
The work of courts was also significantly reduced – they will not hear any cases except for those deemed urgent, citizens should not appear in courts and the parties’ access to files is restricted. Working hours and rules of operation of post offices, mail departments and Customer Service Offices have also changed. Professional attorneys point out that under the current circumstances, part of society has been deprived of the right of defence and the right of access to courts. There is more and more information on the Polish government’s plans to introduce a set of laws, under which the coronavirus threat can be deemed a force majeure event, thus allowing for the suspension of time-limits and limitation periods.
Pandemic: Force Majeure Event?
What is ‘force majeure’?
The concept of force majeure has not been defined in the Polish legal system. However, the prerequisites necessary for qualifying an event as force majeure were developed in the case law and doctrine. Thus, force majeure is considered to be an external event, impossible or practically unpredictable, the effects of which cannot be prevented. Examples of force majeure are: catastrophic phenomena caused by natural forces, e.g. floods, hurricanes, earthquakes, fires. Acts of public authority as well as social or political phenomena on a catastrophic scale are also considered force majeure.
Force majeure and medical negligence compensation claims
The limitation period.
First, it should be noted that, as a rule, a compensation claim for damage caused by medical negligence expires after three years from the date on which the injured party became, or by exercising due diligence could have become aware of the damage and the person obliged to compensate it. Children who have suffered as a result of medical negligence may assert their claims up to 2 years after having reached the age of maturity. If the damage was caused by a criminal offence – the limitation period for claims against the hospital or the doctor is 20 years from the date of the offence. After the limitation period expires, the claimant is time barred from bringing the claim. However, in accordance with Article 121 (4) of the Polish Civil Code, the limitation period does not start and the commenced limitation period is suspended if the entitled person cannot assert their claim before a court, or another body appointed to hear cases of a given type, due to force majeure – for the duration of the force majeure event. Indeed, the occurrence of force majeure may prevent the claimant from pursuing a claim in practice – if, for example, the access to courts is physically impossible.
It should be pointed out that an injured patient who wishes to invoke force majeure will have to show that he could not in fact have asserted his claims before a court or another body in connection with the coronavirus pandemic. Currently, Polish courts are still working – alb fit to a limited extent. As a rule, at the moment, there is no obstacle that could prevent the imitation of a claim or a request for a settlement attempt. However, it must be noted that the state of force majeure must be examined in relation to the circumstances of a specific case, and each case requires an individual assessment. It is the court that ultimately decides whether or not a force majeure event occurred.
Force majeure and pending cases.
In accordance with Article 173 of the Polish Code of Civil Procedure, the proceedings are suspended under provisions of law in the event of cessation of activities of the court due to force majeure. In such a situation, suspension of proceedings does not require any act on the part of the court. Article 179 of the Polish Code of Civil Procedure provides that in the event of force majeure, no time-limits shall run and that they shall only run from the moment on which the proceedings are once again initiated.
At the moment, all hearings scheduled for the upcoming weeks have been cancelled, expect for cases deemed urgent. Admission to some courts has been restricted to parties and their professional attorneys only. However, despite the introduced restrictions, some actions are still being taken in courts, judges do issue rulings in closed sessions and the delivery of court documents has not been suspended. If further measures aimed at preventing the spread of the pandemic such as: closing of courts, closing of post offices (consequently, it will become impossible to serve letters) and restrictions on movement are introduced in Poland – it may well be considered that the proceedings have been suspended under provisions of law due to force majeure. At present, however, it must be assumed that the proceedings are still pending and the time-limits remain running.
Force majeure and criminal proceedings in cases of medical malpractice
In order to avoid the negative consequences of the situation caused by the coronavirus pandemic, it would be reasonable to introduce uniform rules of operation of the courts in terms of actions taken by the court, and to clearly define the procedural situation of the parties. Especially since the Polish Code of Criminal Procedure does not provide for a suspension of proceedings or interruption of the limitation period in the event of force majeure. This means that cases of causing exposure to direct danger of loss of life, serious bodily injury or health disorder are still pending despite difficulties in the work of courts, and that time-limits, including limitation periods for criminal liability, continue to run. Due to restrictions introduced, the proceedings may, however, be prolonged for reasons such as difficulties in hearing witnesses – medical personnel.
In conclusion, the state of epidemic threat is a ‘terra incognita’ for society and a huge challenge facing the Polish justice system. Currently introduced pandemic countermeasures significantly limit access to courts and the possibility to exchange memoranda and pleadings, while courts continue to hold closed sessions. Attorneys at law, legal counsels and judges call for the suspension of time-limits of pleadings and introduction of statutory solutions regarding the course of court proceedings during the state of epidemic threat. It seems that the introduction of uniform, statutory regulations remains the only right solution for the current situation.
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.
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.]
Dzień dobry!