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.]
Soon new regulations, which aim to solve financial problems of people who ran out of guarantee sums, will come into force in Poland. Thanks to the new act, victims of road traffic accidents from years ago will be able to receive additional assistance.
How did the guarantee sums in civil liability insurance coverage of motor vehicles grow?
In the history of compulsory civil liability insurance, the guarantee sums certainly varied. In 1991 the sum amounted to 720 thousand PLN, and by 2003 it increased to 600 thousand EUR for one event. Later, between 2004 and 2005, it amounted to 350 000 EUR per each victim. It was not until 2006 that the guarantee sums were gradually increased from 1,5 million EUR to today’s 5,21 million EUR for one event. It is clear that victims of accidents from years ago were thus in a much worse position since the insurer’s liability limit was much lower back then. Works on changing this situation were initiated by the Polish Ombudsman’s report. He indicated situations where victims whose guarantee sum was used up were left without benefits. Many of them with nothing to live on. These cases mostly concern liability for road traffic accidents prior to 2006.
Pension as primary protection
The purpose of the new act is primarily to secure the basic life needs of the victims. Hence why claims to pensions were limited in accordance with Article 444 of the Civil Code.
The Act on special rights of victims in the event of exhaustion of guarantee sum which was determined on the basis of regulations in force before 1 January 2006 enables to improve the living conditions of persons who have no means of subsistence or whose situation significantly deteriorated. The injured parties will be able to claim a disability pension under Article 444 of the Civil Code. It provides reimbursement of costs arising from bodily injury or a health disorder, including medical costs as well as the costs of preparation for another profession. In addition, it makes it possible to grant a pension due to reduced prospects of success in the future or increased needs of the injured, e.g. related to the purchase of rehabilitation equipment.
New applications needed
Claims will not be treated as a continuation of benefits already paid out, but rather re-examined. Such a mechanism is objective. Additionally, these rights have been extended to persons who were injured in the period when the guarantee sums amounted to 350 thousand EUR per injured party, i.e. years 2004-2005.
A private expert report is a statement based on expertise that is not obtained from an expert appointed by the court. Rather, it is drafted upon the party’s request in order to assess the chances of winning the case, and thus often determines whether the proceedings will be started at all. Given the complex nature of personal injury cases, and the need to prove both the guilt as well as the chain of cause and effect, its significance in such cases becomes even greater.
Problems with the status
According to the prevailing opinion, a private expertise is not an expert witness report (in the meaning of article 278 of the Polish Code of Civil Procedure) and should be treated as a part of the party’s arguments[1]. If a party submits the opinion with a clear intention to treat it as evidence in the case, there are grounds to consider it as private document evidence[2]. However, a private document only proves that a person who signed it made the statements contained therein; the content of such a document is not subject to the presumption of truth, and can be challenged. Courts can’t rely on expertise presented in private evidence, as a private expert is not an expert witness, and can’t be heard as such[3].
Regardless of the complicated status of private expert reports in civil proceedings, their importance is unquestionable, and they are increasingly acknowledged by the courts in litigation practice.
The question that often arises in connection with such reports concerns the costs connected with obtaining them.
Damage or costs of legal proceedings?
There is a minority view that the costs of a private expertise should be treated as the party’s necessary expenditures connected with the pursuit of their rights, and as such, they should be a part of the costs of proceedings, which shall be reimbursed by the losing party. The judicature, on the other hand, tends to consider the costs of a private expert report as damage. Initially, the Supreme Court of Poland, in a case concerning the liability of an insurance company, ruled that the costs of necessary pre-trial legal assistance rendered to the victim are not a recoverable head of loss. [4]. With time, this line of reasoning has changed, and now there is a clear tendency to treat other justified expenses incurred after an accident, and in relation to it – including the aforementioned costs of necessary pre-trial legal assistance – as a part of the party’s damages.
In July 2018, the Supreme Court accepted a motion based on the need to provide legal interpretation of provisions that create inconsistencies in court judgments. . The motion’s rationale points out that it is widely approved that the costs of a private expert report borne by the injured party may be subject to compensation, provided that obtaining the private report was justified, necessary and that it remains in a normal causal relationship with the damage.
In the end, who is going to pay?
The Supreme Court in its judgment of 29th May 2019 ruled that the costs of a private expert report should be reimbursed to the claimant, but only when such report was necessary to effectively pursue damages. Otherwise, the cClaimant will have to bear these costs.
The question still remains whether these costs would be adjudicated as a part of the compensation awarded to the claimant, or treated as a part of the costs of proceedings. If the latter position is adopted, the winning party will be, in principle, reimbursed, although the various consequences of adopting either of the two options differ significantly.
For answers to these questions, and for more insight into how the Supreme Court understands the “necessity to effectively pursue damages”, we have to wait for the justification of the recent judgment, which is yet to be released.
[Article by Paweł Fortuna]
[1] the Judgement of Supreme Court of 26th September 2000, ref. no III CKN 413/00.
[2] pursuant to art. 245 of the Polish Code of Civil Procedure; the Judgement of Supreme Court of 19th December 2012, ref. no II CNP 41/12.
[3] the Judgement of Supreme Court of 12th April 2002, ref. no I CKN 92/00.
[4] the Judgement of the Supreme Court of 7th July 2003, ref. no IV CKN 387/01.
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 and the following two 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.
Step 1. Medical records challenges.
Before anything else can even be considered, by far the most important step is to obtain the entirety of the medical records. Under Polish law each and every patient has a right to obtain his or her medical records, and the request is not subject to any verification; it also does not have to be substantiated. There are no requirements in regard to the form of the request, and it can even be an oral request, but in my opinion the most efficient way is to send a letter directly to the appropriate healthcare services provider – be it an individual practitioner, or a hospital.
Unfortunately, despite clear regulations, practice shows that some medical records requests fall on deaf ears; in other cases, the records are disclosed, but upon closer review, they turn out to be clearly incomplete.
The manner in which medical records should be maintained is regulated very specifically by the law, and if the disclosed records do not comply with the regulations, it is best to lay out all of the flaws in another letter sent to the provider of healthcare services, requesting that these flaws are rectified. If this still turns out to be ineffective, or if no records have been disclosed at all, the next step for the troubled patient would be to reach out to the Patient’s Rights Ombudsman, a public institution that was created to protect patient rights, one of which is of course the right to medical records. The Ombudsman is empowered to demand the healthcare services provider to disclose medical records, and also to impose certain sanctions whenever it is found that patient rights have been infringed; in my experience the Ombudsman’s intervention has always lead, in the end, to the disclosure of all medical records.
Step 2. Case analysis. Fault-based liability system requirements. Expert evidence. Informed consent in Poland.
Now that we hopefully have the records in their entirety, we can proceed to analyze them, and the case itself as well. This analysis of course needs to be done with the prerequisites to liability in mind, and under Polish law, in regard to the general rules in respect of tort, those prerequisites are, first of all, fault – we have a fault-based liability system, secondly: damage, and finally, the causal connection between the tortious act and the damage.
Under the general rules, the standard of care is defined by what the current medical knowledge dictated – at the time of the act – and we try to ask and answer the question, what would a careful, diligent and knowledgeable doctor do when put in the same circumstances. Not achieving the expected result, or even causing certain damage, is not in itself enough to establish fault, since these consequences may have occurred without any fault on part of the medical personnel; some complications are simply unavoidable.
Whether a certain complication was avoidable or not, and in regard to all other matters that require medical knowledge, we of course rely on expert evidence, although what is very different from some of the other legal systems is that in Poland the court chooses the expert, and the parties have very little influence over who will be appointed. As a result, law firms often do not even maintain a database of expert witnesses. We also face increasingly serious issues of there being not enough experts available, since many of the medical personnel, and in particular the highly qualified personnel, would rather not dabble in providing expert evidence at all; it has to be said that the remuneration awarded to experts is not particularly enticing, and the responsibility of an expert is significant. In my experience certain medical specializations suffer from a particular deficit of expert witnesses, such as for example plastic/cosmetic surgeons.
But other than strictly medical issues, what also needs to be considered in each such case is the matter of informed consent, since performing any medical procedure without prior informed consent of the patient, entails liability for all consequences of said procedure, even it the procedure itself was carried out properly. This matter can be of particular significance for a medical tourist, as there is the potential issue of a language barrier. Under law, the healthcare services provider is obliged to provide the patient all of the information necessary to give consent, and such that the consent can be considered informed, in a way that the patient will be able to comprehend. In most cases consent should be obtained in writing, which comes down to the patient signing a specific, pre-prepared consent form. However, the form itself, even if signed, is often not enough to establish that the patient’s consent was informed, that is that the patient indeed had all of the relevant information prior to granting consent – prior to signing the document. In that regard, all kinds of evidence may be used in a trial when it comes to proving the scope of information given, or the lack thereof.
Barring extreme examples, any methods can be used to convey the necessary information to the patient, as long as all of the information is indeed understandable to the patient. For example, reading out the consent form, that the patient is then supposed to sign, to a patient that is blind and cannot read it himself or herself, has not been considered as a violation of patient rights by the Polish courts.
Aquafilling Bodyline was popularized on the Polish market approximately four years ago. The manufacturer of this polyacrylamide hydrogel (PAAG) promised to perfectly fill up irregularities, improve breasts and buttock volume during a mini-invasive procedure, and all of that with a painless and short post-operative period. If this sounds too good to be true, that is because it is. The potential risks that nobody is mentioning? Asymmetry. Deformity. Hypoechoic nodules. Intravascular leakage.
Plastic, reconstructive and aesthetic surgeons are sounding the alarm bell about the severity of cases of breast deformity after Aquafilling injections.
Aquafilling’s empty promises
Aquafilling is composed of 2% polyacrylamide and 98% sodium chloride solution 0.9%. It was developed in the Czech Republic as a soft tissue filler for facial contouring, but is currently used for breast and buttock augmentation. The procedure of its injection is short (the gel is injected through the skin by a needle), and performed under local anesthesia. The recovery – as advertised – is expected to take just one day, with the results becoming visible after a week.
Dangers of breast enhancement gels
Asymmetry, deformity, hypoechoic nodules and intravascular leakage are just a few of many potential adverse complications of using this product, as proven with numerous reports since its debut on the market1. Current experience shows that it is virtually never absorbed, and to make matters worse, it is physically impossible to be removed. All the more shocking that it is (to this day!) widely advertised as completely absorbable and perfectly safe.
Plastic, reconstructive and aesthetic surgeons are sounding the alarm bell about the severity of cases of breast deformity after Aquafilling injections: many of them are irreversible, and may even require breast reconstruction. It proves to be a great challenge – even for the most experienced surgeons – to remove the gel completely, even with cannula suction, saline irrigation and manual physical pressure.2
The risk of complications is even higher due to the fact that the gel is injected almost exclusively without imaging guidance of e.g. ultrasonography.
Do not get lead astray: Aquafilling = Los Deline
It therefore comes as no surprise that the U.S. Food and Drug Administration (FDA)3 disallowed the use of the filler back in 2015, or that the Korean Academic Society of Aesthetic and Reconstructive Breast Surgery issued a position statement in 20164 opposing the use of Aquafilling.
However, due to these actions, as well as the high risk of complications, the gel has repeatedly been withdrawn from use, only to later be re-registered under other names. As reported by the Polish Clinic of Plastic Surgery at the Medical Postgraduate Training Centre in Warsaw5, this precedent recently took place in Poland. By the decision of the Polish Department of Surveillance and Clinical Trials of Medical Products of the Office for Registration of Medicinal Products, Medical Devices and Biocidal Products, Aquafilling Bodyline has been withdrawn from use, but returned to the market a few months ago under a new name – Los Deline. The manufacturer issued a statement informing that the change of name was made due to marketing reasons.
A lawyer’s perspective
Our firm has already been contacted by a growing number of patients suffering from adverse reactions after being injected with Aquafilling/Los Deline. Their cases take on a cross-border dimension, as the gel is manufactured in the Czech Republic, which poses certain investigation and litigation challenges. With the much appreciated help of Klara Dvorakova, in cooperation under PEOPIL, we have been able make findings as to the manufacturer of the product. We are concerned with the lack of media coverage on the topic of complications and advise all potential users of polyacrylamide hydrogels to conduct detailed research prior to deciding whether or not to undergo considered procedures.
1 Peters W, Fornasier V. Complications from injectable materials used for breast augmentation. Can J Plast Surg 2009;17:89-96.; Patlazhan G, Unukovych D, Pshenisnov K. Breast reconstruction and treatment algorithm for patients with complications after polyacrylamide gel injections: a 10-year experience. Aesthetic Plast Surg 2013; 37:312-20; Ono S, Ogawa R, Hyakusoku H. Complications after polyacrylamide hydrogel injection for soft-tissue augmentation. Plast Reconstr Surg 2010; 126c:1349-57.
2 Eon Rok Do, Jeong Su Shim. Long-term Complications from Breast Augmentation by Injected Polyacrylamide Hydrogel. Archives of Plastic Surgery, Vol. 39 / No. 3 / May 2012.
3 U S Food and Drug Administration. Soft tissue fillers: Dermal fillers. Silver Spring, MD: U. S. Food and Drug Administration; 2015.
Lawyers from the European Union who intend to provide legal aid in Poland to the extent relevant for an attorney-at-law, as well as lawyers from outside the European Union, whom their professional title entitles to practise a profession which is the equivalent of the profession of an attorney-at-law, are entered into a list maintained by councils of the district chambers of attorneys-at-law.
A foreign lawyer in Poland post Brexit
Am I in part A or in part B of the list?
The list of foreign lawyers is divided into part A – for foreign lawyers from the European Union and part B – for foreign lawyers from outside the EU. The former have much more competences; competences of a lawyer entered into part B of the list are very limited.
“Subject to reciprocity, unless the international agreements ratified by the Republic of Poland or the provisions of the international organisations the Republic of Poland is a member thereto provide otherwise, a lawyer from outside the European Union shall be entitled to provide cross-border services that consist exclusively of representation in civil proceedings of a party being a national of or belonging to a state in which the lawyer is authorised to practise the profession.” Most likely, after Brexit, British citizens entered into list A will be transferred into list B – Polish Ministry of Justice is probably already slowly preparing the ground for this.
I want to be included!
The formalities relating to the submission of an application for entry can be found at the Kraków’s District Chamber of Attorneys-at-law: https://oirp.krakow.pl/dzialy/dla-kandydatow/wpis-na-liste-prawnikow-zagranicznych/wpis-na-liste-prawnikow-zagranicznych-1/. Although the requirements and procedure described on this website are statutory and thus universal, the application must be submitted to the council which is competent with regard to the location of the lawyer’s future professional office as indicated in the request.
Now, how many forms do I have to fill out?
There is no application form on the abovementioned website, since the chambers do not use such a form. The application must be written autonomously, include the necessary information listed in detail on the website and be accompanied by relevant documents. The application for entry must be made in Polish. The remaining documents, if not made in this language, are to be submitted together with a translation into Polish, certified by a sworn translator. The application should be addressed to the Dean of the Council.
Entry on the list is decided upon by the Council in a form of a resolution.
Relevant Polish legislation: The Law on Legal Assistance Provided by Foreign Lawyers in the Republic of Poland. Ustawa z dnia 5 lipca 2002 r. o świadczeniu przez prawników zagranicznych pomocy prawnej w Rzeczypospolitej Polskiej (Dz. U. Nr 126, poz. 1069 z późn. zm.):
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!