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.]
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.
In the face of widespread criticism of the activities of the District Committees Adjudicating on Medical Events (Wojewódzkie Komisje ds. Orzekania o Zdarzeniach Medycznych) as well as considering new developments to investigate alternatives to judicial proceedings, it is worth to consider reasons why a formula of compensating personal injury, intentionally modelled on (among others) the Swedish system, did not fall on fertile ground in Poland. Thus, let us compare legislative solutions adopted in Sweden and in Poland.
Funding
In Sweden, provisions on the right to compensation for damage suffered by a patient as well as provisions regarding the Patients Claims Panel (Patientskadenämnden) are included in the Patient Injury Act of 1996 (which entered into force on 1 January 1997). The Patients Claims Panel, in some ways an equivalent of the District Committees Adjudicating on Medical Events (thereinafter also DCAME), is an entity operated by the Patient Insurance Association (Patientforsakringsforeningen, PFF). All insurers who issue patient insurance for healthcare entities are affiliated to the Association.
Source of financing is the key difference between Swedish legislative solutions and the regulation in force in Poland, where – initially – the Act of 28 April 2011 on amending the act on patients’ rights and the Ombudsman of Patients’ Rights (thereinafter also Act on patients’ rights; it entered into force on 1 January 2012) introduced a new form of an insurance contract together with rules governing the DCAMEs. The costs of insurance policies for medical events were to be charged to hospitals. With time, however, the date of entry into force of the obligation was postponed again and again: first, until the beginning of 2015, then 2016 and 2017, before the obligation of the hospitals to be insured against medical events was fully abandoned. As a result, in the absence of a guarantor whose funds would be used to pay compensation with, it is the healthcare entities (operating – at least in theory – on a self-financing basis) that are directly charged with the obligation to pay compensation and redress to patients. The DCAMEs activities are financed from that part of the state budget which is at the disposal of the relevant voivode.
Medical event – two countries, two definitions
The Swedish model is considered to be an exemplary formula for replacing civil liability with a special form of compensation for patients for medical events which should not have occurred in course of proper treatment, paid irrespective of the fault of a healthcare provider (no fault compensation).
Compensation is provided for personal injury to a patient in Sweden if there is a substantial likelihood that the injury is caused by:
examination, care, treatment or similar action, provided that the injury could haven been avoided either by another embodiment of the chosen procedure or by a choice of another available procedure which, according to an ex-post assessment from a medical point of view, would have met the need for care in a less risky way,
defects in a medical device used in examination, care, treatment or similar action or improper handling thereof,
incorrect or delayed diagnosis,
transmission of an infectious agent that has led to infection in connection with examination, care, treatment or similar action; special circumstances taken into consideration include assessing if the infectious agent was transmitted from an external source during the delivery of care, and if the infection’s severity and rarity outweigh the seriousness of the patient’s underlying disease;
accidents in connection with examination, care, treatment or similar action or during sick transport or in connection with fire or other damage to care rooms or equipment; or
prescribing or dispensing of medicines in violation of regulations or instructions.
The Swedish model does not require proof of fault or malpractice, however the avoidability rule is used instead – a claim is compensated if the injuries of a patient could have been avoided under optimal circumstances, i.e. the injury would not have occurred in the hands of the best health practitioner ro health system. This rule is known as the ‘experienced specialist’ rule. Thus, the benchmark is set at excellent care, rather than acceptable care.
The definition in force in Poland, although seemingly similar, is so complicated that the application of Article 67a of the Act on patients’ rights is troublesome even for the members of DCAMEs. In accordance with the Act, the provisions of Chapter 13a regarding compensation and redress for medical events apply to: infecting a patient with a biological pathogen, a bodily harm or health impairment of a patient or a patient’s death following a non-compliance with the current medical knowledge in the case of:
diagnosis, if it resulted in an inappropriate treatment or delayed an appropriate treatment, contributing to the development of the disease,
treatment, including surgery,
the use of a medicinal product or a medical device.
Thus, the Act introduces a requirement to establish a causal link between the action or omission – which was non-compliant with the current medical knowledge – and the injury to a patient. There are two critical points that distinguish the Polish definition from the Swedish scheme. Firstly, the Polish definition lacks an unambiguous indication that it is enough – as it is in Sweden – to prove ‘substantial likelihood’. The prerequisite of having to prove the causal link seems stronger than what is required in Sweden, however, relevant case-law makes the interpretation of the definition easier: it leans toward recognising that it is sufficient to prove a high degree of likelihood in order to assume liability.
The second difference is of a fundamental nature and arouses considerable emotions of the medical community when discussing the functioning of DCAMEs: the Swedish criterion of avoidability is the key to recognising that compensation system as ‘no fault’, in contrast to the Polish requirement of proving that the medical staff acted in a manner ‘incompatible with the current medical knowledge’. The decision on a medical event or a lack thereof cannot be issued without proving fault – since that is precisely what most commonly satisfies the ‘non-compliance with the current medical knowledge’ premise.
Medical negligence
Compensation to patients for medical events
In Sweden, the compensation that a patient is entitled to consists of two general components: pecuniary and non-pecuniary damages (for pain, suffering, disability) damages. Compensation for loss of income or future loss of pension is paid as annuity. The amount of compensation was – in 2019 – limited to a maximum of 46 500 000 SEK (approx. 4 430 000 EUR) for each medical event, and a further limit was set for each patient (to a maximum of 9 300 000 SEK – approx. 28 580 EUR). These amounts are determined yearly and based on a price index.
In Poland, the maximum benefit amount (compensation and redress) arising from one medical event for one patient in case of infection, bodily harm or health impairment amounts to 100 000 PLN (approx. 23 550 EUR). If the patient died, it cannot exceed 300 000 PLN (approx. 70 660 EUR). The patients are not entitles to a pension. Furthermore, in both cases, in order to effectively accept the compensation proposal, the patient needs to submit a statement waiving all claims for monetary damages for any harm that may result from the event recognised by a committee as a medical event in respect of damage revealed after the date of filing an application.
There is no limit as to the amounts of compensation, redress and pension that a patient may obtain after bringing a medical negligence claim before a Polish court, however, the minimum guarantee sum of the obligatory civil liability insurance for hospitals amounts to 100.000 EUR for one event.
Proceedings before the Patients Claims Panel and the DCAMEs
In Sweden, referring a case to the Patients Claims Panel is preceded by reporting the damage to the insurer. If the patient is not satisfied with the decision of the insurance company, he can ask the Panel to examine the case or immediately bring a lawsuit to court.
Bringing a claim before the Panel is free of charge for the patient, however, the attorney’s fees are not covered by the Patients Claims Panel. The proceedings take place in writing, although in exceptional cases, should the Panel consider it advantageous for the proceedings, the patient may be heard. All cases are handled under a duty of confidentiality. The average processing time is six months, although in some cases it might be extended. Even though the Panel’s decision is only advisory for the parties, there is a high level of compliance and, in most cases, the insurance companies follow it.
The use of an extra-judicial route such as the Patients Claims Panel does not exclude taking subsequent legal actions before the Swedish courts. The Panel’s decision can be used as evidence in court. During legal proceedings, Swedish courts have the authority to ask specific questions to the Patients Claims Panel before ruling on a case – a right seldom exercised.
Members of the Panel are appointed by the Swedish government. The chairman is, or has been, a judge within the Swedish court system. The patients are represented by three members appointed by the parliamentary parties. Other members include: a medical expert, a county council politician with special knowledge in healthcare and a member who is particularly knowledgeable in matters of personal injury settlement (usually an insurance lawyer or claims adjuster at an insurance company). This last-mentioned member is not appointed by the Swedish government, but rather by the Patient Insurance Association.
Polish patients are also offered a choice: they can report the damage either to the insurer or directly to the DCAME, or bring a lawsuit to court. In theory, the DCAME’s decision is to be issued no later than 4 months from the date of filing the application, but in practice the majority of proceedings last longer – even up to several months. It is a consequence of the fact that, during the proceedings, the DCAME considers many items of evidence: mainly medical documentation, but also witness statements, hearing of the parties and expert reports, applying the Code of Civil Proceedings.
There are 16 such committees in Poland, each of which consists of members appointed by the voivode (14 persons), the minister responsible for health (1 person) and the Partner Rights’ Ombudsman (1 person). Eight members have experience and education within various medical fields, eight – within the field of legal sciences. The committee has jurisdiction with a 4-seat composition.
Proceedings before the DCAMEs are carried out in two instances. The parties have the right to submit a reasoned request for a retrial. Considering the application for a retrial does not involve a member of the panel who participated in the issue of the contested decision.
Submission of an application is subject to a fee of 200 PLN (approx. 47 EUR). The losing party bears the costs of the proceedings, which are, however, much lower than the costs of court proceedings and in practice limited to a flat-rate renumeration of experts (up to 450 PLN – approx. 105 EUR – for one expert report).
The purpose of the proceedings before a Committee is to determine whether the event which resulted in a pecuniary or non-pecuniary damage was a medical event. The Committee does not determine the amount of due compensation and redress. It is the entity running a hospital who submits a proposal of compensation to the applicant. Submitting a proposal with any amount – within the maximum limits set by the application and the Act – even a symbolic amount, is treated as fulfilment of the statutory obligation by the entity.
The Committee’s decision has no preliminary value neither in liquidation proceedings nor court proceedings, where it is only treated as evidence from an authentic instrument.
Time limits
Currently, anyone who wants to pursue compensation for a patient injury must commence proceedings within ten years calculated from the time when the injury was caused. If the patient reported the injury to the healthcare provider or to the insurer within the time limit specified above, the time limit for bringing the claim before the Patients Claims Panel is six months from the moment when the patient has become aware of the insurer’s final position on the claim. The limitation period is interrupted by bringing the case before the Panel.
In Poland, the application to a committee must be filed within one year from the date on which the applicant learned of the injury or from the date of the patient’s death, but the time limit cannot exceed 3 years from the date of the event resulting in personal injury or the death of a patient. In case of a patient death, the one-year period does not run until the end of the succession proceedings. Submission of an application interrupts the limitation period specified in the provisions of the Civil Code for bringing claims arising from the events covered by the application only if the application resulted in the Committee issuing a decision declaring a medical event. Thus in practise (in an extreme situation) the defendant may successfully refer to the limitation period during subsequent civil proceedings, if the Committee’s decision, issued following lengthy proceedings, was unfavourable to the patient – since the general limitation period is 3 years from the day on which the aggrieved party learns of the damage and of the person obliged to remedy it.
What the experts say
Joakim Jaderstróm: The procedure before the Patients Claims Panel has its advantages and disadvantages. When the liquidation proceedings before the insurer conclude, the patient has a choice whether to turn to the Panel or submit a claim to court. Proceedings before the Panel and the opportunity to obtain the position of experts provides the patient with additional data useful when asserting the claim by way of legal action. As the procedure itself is free of charge to the patient, the proceedings are available to all – regardless of one’s financial position. However compensation for legal fees may not always be obtained from the legal protection insurance and the Panel does not reimburse these costs. This certainly puts the patient in a less favourable position in comparison with the insurance company. Furthermore, given the often complex medical matters, it is every so often advantageous for doctors and other experts to be heard orally during the proceedings, which usually is not possible before the Panel.
Jolanta Budzowska:The fundamental difference between the functioning of the Swedish Patients Rights Panel and the Polish DCAME is the effectiveness of their decisions. In both countries the decisions are not binding, nonetheless Sweden boasts a high level of compliance. There is a simple reason why this cannot work in Poland in a similar way: our hospitals are often unable to (and are unmotivated to) pay out compensation for a medical event out of their own budget, since an unsatisfied patient might at most take the case to court and obtain a favourable judgement against the insurer, who – at the will of the legislator – did not participate in the proceedings before the Committee. A common feature for both models of extrajudicial claims settlement – the possibility to obtain evidence that may later be relevant in court proceedings (a feature beneficial to the patients), is meanwhile heavily criticised in Poland.
A glance at statistics
In 2018 the Patients Claims Panel received 1 801 cases. There is no official statistical data as to how many of these ended with awarding compensation to the injured party. It is estimated that in previous years the Panel recommended that the compensation be granted in 10% of claims and that just under 50% of claims are rejected on a per annum basis on the grounds that they do not satisfy eligibility based on the avoidability rule.
In Poland, during the DCAME’s first term of office (in the years 2012-2017), the Committees assessed 896 applications on a yearly average (not including applications for retrial), out of which in 20% of the cases a medical event was determined (164 on a yearly average).
Thus, if we calculate the number of inhabitants (10,12 milion in Sweden, 37,98 milion in Poland – data as of 2018), the Patients Claims Panel receives over seven and a half times more cases per year than the DCAMEs in Poland.
Conclusion
The Swedish Patients Claims Panel aims to promote fair and consistent application of the provisions of the Patient Injury Act regarding compensation for injured patients. Analysis of relevant regulations and of the practice shows that even though the Panel’s opinions operate as recommendations only, these objectives are successfully achieved thanks to a wide access to the procedure and a workable system of financing compensation from insurance companies’ funds.
In Poland, according to a report of November 2018 prepared by the Supreme Audit Office (Naczelna Izba Kontroli, NIK), “the extrajudicial system of adjudication on medical events by the district committees does not provide the patients with an effective route for quickly obtaining compensation and has not become an alternative to the judiciary”. However, it is worth noting that the number of cases filed with first instance courts, qualified by the courts as “civil cases for compensation for damages caused during the provision of health care” has remained at a similar, or even at a lower level throughout the DCAMEs first, six-year term (971 cases in 2012 and 857 cases in 2018). Thus a rhetorical question must be asked: how many cases would have been filed if it weren’t for the DCAMEs? The committees have considered at least as many cases as the first instance courts on average per year during their first term.
Nonetheless, it is difficult to disagree with the generally negative assessment of the functioning of the Polish extrajudicial compensation system for patient injuries caused by medical event. The Ombudsman of Patients’ Rights shared NIK’s concerns and proposed constructive changes. Based on the Swedish experiences with no-fault compensation, it is safe to say that a similar model would only be effective in Poland if – in line with the Ombudsman’s request – a guarantee fund is set up. The fund that would provide cover for fair compensation: a socially acceptable level of redress for harm suffered, allowing the patient to recover and resume normal social function. It would need to operate independently of insurers and medical entities, similarly to as it is in Sweden. Otherwise, we will be facing the same problems as today: both DCAMEs decisions addressed to hospitals and liquidation proceedings before the insurer are ineffective in settling the patients’ claims extrajudicially.
In the meantime, the DCAMEs, unwanted children of the Polish extrajudicial route of claiming compensation, are doomed to extinction due to a complete lack of amendments to the Act on patients’ rights. It is preposterous that the committees were forgotten by the Parliament when adopting the latest, significant amendment to the Code of Civil Proceedings. As a result, Article 67o of the Act on patients’ rights contains reference to civil procedure provisions that are inexistent. Meanwhile, injured patients await real possibility of obtaining compensation for medical events, medical personnel await a truly Swedish no-fault scheme and we all await legislation on quality in healthcare. How about we stop learning through hands-on experience and start reproducing winning solutions, already established in other countries, on the Polish ground? No i cóż, że ze Szwecji?*
* A popular Polish tongue-twister. Its literal meaning is: And so what if it’s from Sweden
The ties between Polish and Irish legal professionals continue to strengthen, as the Association of Judges of Ireland decides to show their solidarity with the judges of Poland in the upcoming protest against highly controversial reforms of the Polish judiciary system.
The protest concerns legislation changes that are currently being processed through the Polish parliament, and which, in the view of the Polish judiciary, seriously infringe on its political independence. Among others, direct comparisons are made to appropriate provisions of the law from the communist times of the Polish People’s Republic, in order to show that the prospective changes that are now about to be implemented are indeed frighteningly similar to the regulations of old.
To manifest their disapproval, the Polish judiciary will take part in a silent march on Saturday, 11 January 2020, in Warsaw. As it has now been announced, they will not stand alone, and among many of their foreign colleagues, Mr Justice John MacMenamin, representing the AJI, will also join the march.
Irish judge will join protest march over curbs on Polish judiciary
No doubt the judges of Poland, and in fact all Polish citizens who value a politically independent judiciary system, need all the help that they can get in their efforts to convince the government to forego the controversial reform. In that light, signs of solidarity, such as shown by the AJI, are undoubtedly more than welcome.
Last week, I had the pleasure of actively taking part in APIL’s fourth accidents abroad conference. This year the event brought us-up-to date in the latest and most recent developments on cross-border and international claims. Facing Brexit, we wondered what options are there for injured claimants whose life center is in the UK, but the accident in which they suffered injuries, occurred in Poland. If they are not able to pursue their claim in the UK, what options do they have left, assuming the jurisdiction of Polish courts?
Below you can find a summary of the issues I brought up as part of the panel discussion titled: Costs and funding in accidents abroad cases: what are the options and what is in the client’s best interests?
(a) What funding options are there for injured (foreign) claimants to enable them to bring PI / Fatal Accident actions in Poland?
In Poland, there are no special funds or rules in place to facilitate victims in pursuing compensation claims. There are no companies which would offer to evaluate cases or to finance the proceedings. In practice, legal expenses insurance purchased by clients is both rare and ineffective. This is to due to the usually low insurance sums, which do not cover the actual costs of trial. Polish insurers very rarely recognise their liability, they also often pay out a significantly lowered compensation as part of a so-called “undisputed part of the claim”. Therefore we almost never settle, and it is why we almost always go to trial, where the rule of the thumb is that the client finances the proceedings. The costs of the trial are made up of two main components: court costs and attorney’s fees.
Court costs are significant. The claim fee alone is 5% of the value of the claim – the amount claimed, not the amount won.
We have an adversarial system, but it is the court who appoints experts from a list maintained by the court. A party has to pay for the expert, but doesn’t have any say in the process of choosing him. It is also very common to question an expert’s opinion and get a follow-up opinion of a different expert of the same specialty. The party who challenges the expert opinion must obviously pay for the follow-up opinion.
In addition to the lawsuit fee and the costs of experts, there are other, smaller, expenses. They may, however, grow larger in cross-boarder cases, where one has to take into consideration the cost of sworn translations of medical records or invoices confirming expenses. Another considerable cost may also be the costs of witnesses, if they have to travel from abroad.
What is crucial here is that a party in Poland may apply for an exemption from court fees. But I need to stress that exemption from court fees is often referred to as the “right of the poor” and the court’s approach to it tends to be very restrictive. If such exemption is granted, the State bears all court fees until the end of trial. A party exempt from court fees in their entirety that loses the case, and is not awarded anything, is usually also exempt from paying any court fees and the State will cover them instead.
This exemption – in whole or partial – is quite common. However, it must be demonstrated in detail that the client’s monthly home budget does not allow to save in advance for the lawsuit fee and other court costs. A party applying for an exemption may not have savings, real estate or valuable items.
If the case is won, court fees incurred by the winning party who has not been exempt, are reimbursed by the losing party in full.
The second component of costs of the trial are the attorney’s fees. This matter is simpler. PI cases are almost exclusively conducted on a success fee basis, combined with a fixed fee payable upon signing the contract.
The most important issue here is that the success fee is paid by the client from the compensation awarded to him. The opponent does not cover the attorney’s renumeration in full, even though he loses. The losing opponent will only be obliged to pay a flat-rate renumeration set by relevant law, and not the contractual renumeration agreed upon between the attorney and the winning party.
(b) Who bears the costs of investigating potential claims?
The norm in Poland is for law firms to offer a no-fee analysis of each case. The cost of the work required for such analysis is a cost that cannot be recovered from the defendant. The law firm also bears the costs of pre-trial expertise, if it considers them necessary for making the decision to accept the case. Even if the expert who prepared a private report for a party before the trial is included in that list, his report has no evidential value in trial – it does not have the value of a report of the court expert.
(c) How are damages calculated for personal injury claims in Poland? In particular, are there standard form tables and / or limits used?
In Poland there are no tables or strict rules which would indicate a specific amount of money for a given detriment to health. Legal provisions only stipulate that non-pecuniary damages awarded to the injured party should constitute “an adequate sum”. What “an adequate sum” is will depend upon the sole discretion of the court, but it cannot exceed the statement of the claim. At the same time, the principle of the court’s discretion does not stand for arbitrariness, but rather it’s set by life experience, the rules of logical thinking and a certain level of legal awareness.
Over the years, court practice has developed a set of non-exhaustive criteria which have to be taken into consideration by the court when determining this “adequate sum”. Basically, the court should take into account all factors affecting the extent of the claimant’s harm, and they are always assessed in relation to the individual case.
Predicting the award in any given case is always very difficult, even for professionals. What can be a sort of a “reference point” is the amounts awarded for harm for the most serious injuries (such as cerebral palsy due to negligence during childbirth), which currently oscillate around 1.200.000,00 PLN (240.000 pounds). Having said that, this amount should definitely not be treated as a cap of non – pecuniary damages in Poland, as a Polish judge could at any time lawfully award redress in an amount higher than that, as long as the circumstances of the case justify such an award.
The difficulties in assessing this adequate sum of compensation also translate into the risks of going into trial. In practice, it is the claimant’s attorney who has to asses the amount of redress he will claim for the client. Other components: compensation, pension – are enumerable. It is, however, redress that constitutes the biggest part of the ultimate amount of compensation as a whole and determines the value of the claim – and thus, a 5% fee on the amount claimed. If the court recognises the principle of liability in the judgment, but at the same time awards a smaller amount of redress, the costs of trial will be settled proportionally. For example, if 100 thousand pounds of redress was claimed, and the court awards 80 thousand pounds, the claimant will recover from the opponent 8/10 of the costs of the trial.
(d) Are there any cost-capping regimes in place (i.e. where the court limits the amount of costs that can be spent on a case by either side)?
When it comes to client-attorney agreements, there are no cost-capping regimes in place. The rules are dictated by the market for services provided by the law firms. The rule of success fee prevails: the initial fixed fee plus a percentage of the amount won in court.
Cost-capping regimes apply to the settlement of costs at the end of a trial. If the claimant wins, the court will award him the renumeration/costs of legal representation according to the rules set by the law, and not according to the actual client-attorney contract or to the actual costs of a case. The losing opponent will only be obliged to pay a flat-rate renumeration set by relevant law, and not the contractual renumeration agreed upon between the attorney and the winning party. The opponent does not cover the attorney’s renumeration in full, even though he loses. This means that there is no way to recover the actual, in-trial litigation costs.
Similarly, in the event of a loss, the claimant will pay the defendant only the costs of legal representation according to the rules set by the law, and not according to the contract that the opponent concluded with his lawyer. The theory is that such principles serve to predict the costs of the proceedings.
(e) If a claimant loses their action do they have to pay the defendant’s costs? If so, how are those costs calculated?
In the event of a loss, the claimant will pay the defendant only the costs of legal representation according to the rules set by the law, and not according to the contract that the opponent concluded with his lawyer.
What’s more is that even a party that was exempt from court fees, and lost the case entirely, may be ordered to pay the appropriate attorney’s fees rate to the other party.
On the other hand, the claimant will not necessarily have to pay these costs, even when losing their action. In Poland the court has some discretion here, and even if the claimant loses their action, the court has the right to refrain from ordering him to cover the defendant’s costs. What is particularly taken into account by the court in such cases is whether the claimant was objectively justified to bring the action, despite losing in the end, and whether the claimant is in a dire financial situation. If such an order is made, the winning party may not recover attorney’s fees in any way.
(f) Is there any form of After the Event insurance available to reduce the risk to the Claimant of bringing an action? How common is it in their countries?
Both outside litigation funding as well as cost insurance is, in my experience, uncommon, and not widely practiced in Poland.
Risk for the claimant is definitely there, but it’s largely mitigated due to the fixed attorney’s fees system, the success fee model of cooperation, the exemption from court fees application, and the judge’s authority to refrain from ordering the claimant to pay fees, even when losing their action.
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.]
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