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.]

Life after Brexit

Michał Krzanowski11 January 2019Komentarze (1)

On 30 March 2019, two years will have passed since the United Kingdom launched the procedure for leaving the European Union. It is still unclear whether an agreement will be reached between the EU and the UK before that date, regarding the conditions of their much-publicised divorce. However, if the parties do not conclude such an agreement, as of 30 March 2019 the UK will become a “third country”, and the European Law will become inapplicable to the UK. Thus, it is worth considering if – and if so, then how – will this influence the injured parties’ situation in cross-border cases.

“Magical” 1215/2012

First of all, it is worth pointing to the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Pursuant to this regulation, the judicial decisions of the European Union’s Member States are enforceable in other Member States without the requirement of declaring the enforceability in separate proceedings – which is considered a significant convenience in cross-border cases.

What is all the more important, the regulation is also an act on the basis of which jurisdiction is established for cross-border civil and commercial cases. For example, persons permanently residing in the UK who have sustained damage while on a trip to Poland – usually resulting from fault on part of an entity with its registered office, or domiciled in Poland – are faced with a challenging situation: not only do they have to suffer from the consequences of the damage, but they also have a difficult dispute ahead of them, involving many doubts. Will it be necessary for an injured UK resident to start potential proceedings in Poland?

Where to sue for personal injury?

Today in such a situation, the above-mentioned regulation comes to aid. In some cases, it grants an exception to the principle that a person domiciled or with a registered office in one of Member states may be sued in the court of that Member State. In particular, this applies to insurance businesses, which – pursuant to the regulation – may also be sued in the court competent for the registered office or domicile of the person entitled under the insurance contract.

However, where the insurer is liable for damage caused by the insured person, the abovementioned option of suing the insurer is subject to one more condition – it must be possible under national law to sue the insurer directly. Going back to our example – in the event of such a dispute, how should it be assessed which law should apply to resolve this issue?

Insurer: party to the proceedings?

In this regard, that is whenever the applicable law is put into question, a key piece of EU legislation is the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). The regulation stipulates, that for non-contractual obligations – and that is the case in the example discussed above – it is the law applicable to the non-contractual obligation that resolves whether the injured party may bring his or her claim directly against the insurer. In turn – also pursuant to this regulation – for non-contractual obligations arising out of a delict, the law applicable will usually be the law of the country in which the damage occurs.

Service of documents: may seem unimportant, however…

Finally, it is worth mentioning two further Regulations which govern the principles of the service of documents, and of taking evidence in other countries than the country where the court hearing the case is sitting, i.e. 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 and Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters . These two regulations, although of relatively less significance than the aforementioned, undoubtedly serve to accelerate and facilitate the conduct of all cross-border proceedings, including those related to personal injury.

Will the victims secure a successful exit from Brexit?

The issue of continuation of the above-mentioned legislation or its equivalents may of course be governed by the agreement between the EU and the UK regarding the conditions of the exodus mentioned in the introduction. However, its conclusion still remains a big question mark. In the absence of an agreement, as of 30 March 2019, the victims’ situation in cross-boarder disputes involving the UK will certainly be substantially worse than so far.

Severely injured in Poland – what’s next?

Jolanta Budzowska07 January 2019Komentarze (0)

When a road traffic accident results in serious deterioration in health of the victim and it is impossible to communicate with him, particular difficulties in securing protection of his rights and pursuing compensation claims may occur.

Generally, in order for a representative to be able to act on behalf of the injured party, a power of attorney is required. But what if it cannot be consciously granted due to the health condition?

It is worth to know about two essential options available in Polish legislation.

Severely injured party’s situation in criminal proceedings

If the serious deterioration in health is the result of a crime, the victim’s rights in pre-trial proceedings conducted by the prosecution and afterwards in court proceedings may be exercised by the person under whose custody the victim remains (article 51§3 of the Polish Code of Criminal Proceedings). Usually, the de facto guardian is a close family member.

De facto guardian of a victim who is considered a helpless person, although capable of fully exercising his or her civil rights, acts in the criminal proceedings as a procedural representative of the party (the victim). Thus, what we are dealing with here is acting for the party.

The helpless persons’ representative, due to the state of health, may i.a.:

– appoint an attorney-at-law or a counsellor as a representative
– if the victim does not speak Polish – he or she has the right to free assistance of an interpreter at questioning or becoming acquainted with the evidence,
– has the right to file request to conduct evidence-gathering activities,
– has the right to access case files.

Severely injured party’s situation at the hospital

Only the patient himself has the right to access medical records and receive information on the treatment process as well as the state of health, unless he has authorised someone to do so.

If, however, he or she has been transported to the hospital in a state that does not allow for the possibility to consciously give such authorisation, e.g. in a state of unconsciousness, the situation seems to be a stalemate.

Even persons close to the victim will not obtain a full copy of medical records which usually is necessary to obtain compensation for damage to health. Is there any alternative solution then?

Yes. If the injured party has previously authorised anyone to obtain his medical records – at another hospital, during a different hospitalisation or at his/her General Practitioner – such authorisation may be used. According to the case-law of Polish courts, an authorisation given in one medical facility “works” in all others, unless of course it has been revoked. A person authorised in this way will legally be able to obtain full medical records. However, in such situation one should obtain a certified copy of this authorisation, which should be included in the documentation of the medical facility in which the authorisation has been given.

When is incapacitation necessary?

The above-mentioned solutions enable to secure the severely injured party’s rights only temporarily. If the injured party is permanently unable to manage his or her affairs, one should consider initiating judicial incapacitation proceedings.

Incapacitation proceedings may last for a few months. This is due to the fact that in the course of the proceedings it is necessary to issue one, and sometimes several, expert reports. Thus, if in the course of the proceedings there is a situation which requires taking urgent action for the person who is the subject of the ongoing proceedings, it may be useful to appoint a so-called temporary advisor for this person, for the duration of the incapacitation proceedings.

Do you need help because you, your loved one or your client has suffered a serious accident in Poland and is still hospitalised or under home care here, and due his serious health condition there are difficulties in claiming his rights?

Contact us!

Who can be held responsible for medical malpractice in the realm of medical tourism?

Jolanta Budzowska12 October 2018Komentarze (0)

In recent years, Poland has become one of the most popular tourism destinations among tourists from Great Britain, Germany, Sweden and Norway who look for highly specialised medical services during their travel. Medical services may qualify as travel services supplied to a traveller within the meaning of the Act on Package Travel – Polish national provision transposing the Directive 2015/2302 . This raises a question of distribution of liability for the quality of medical services provided by healthcare entities. Who can be held responsible for medical malpractice when the medical service is provided within the framework of a package travel or when it has been purchased by a patient as a linked travel arrangement?

Healthcare entity as as a tourism entrepreneur

In practise, the tourism organiser or the entrepreneur who assists in the purchase of linked travel arrangements is the entity operating strictly in the tourism industry. However, there may be circumstances where the healthcare entity has the status of a tourism entrepreneur. This entails far-reaching responsibilities and liability for medical negligence.

The prime responsibility of a healthcare entity who is a provider of travel services in the form of a healthcare service is certainly to comply with all rules on providing the healthcare service duly, consistently with current medical knowledge and professional ethics – under existing legislation including in particular: the Act on Patient’s Rights, the Act on Professions of a Physician and Dentist and the Act on the Healthcare Institutions. The traveller – regardless of whether he is a Polish citizen or a foreigner – can exercise all patient’s rights as set out in the Act on Patient’s Rights: i.a. the right to healthcare services consistent with current medical knowledge (Article 6 (1) of the Act on Patient’s Rights), the right to healthcare services provided with due diligence by entities providing healthcare services under conditions that meet professional and sanitary requirements specified in separate provisions (first sentence of Article 8 of the Act on Patient’s Rights), the right to healthcare services provided by healthcare professionals who follow the principles of professional ethics specified by relevant healthcare professional’s organisations (second sentence of Article 8 of the Act on Patient’s Rights) and the right to information on own health status (Article 9 (1) of the Act on Patient’s Rights).

When it comes to package travels in relation to medical tourism, in addition to the usually encountered inconsistencies (issued with accommodation, transportation, etc.), the primary risk of medical tourism is the risk of bodily injury or disorder of health due to negligence or the so-called medical error in providing the traveller with healthcare services – which in turn may lead to material and non-material damage (harm) of the traveller.

 

Treatment as a linked travel arrangement

Moving on to the considerations on the scope of liability of tourism entrepreneurs in relation to medical tourism, it must be pointed out that when applying the model of linked travel arrangements, each of the tourism entrepreneurs is responsible for his own actions and omissions. Therefore, in case an inconsistency occurs during the provision of a healthcare service, the entity liable to the traveller would be the healthcare entity – within the framework of fault-based tortious liability. This means that it is the traveller who would bear the burden of proving the existence of circumstances warranting the liability: the healthcare entity’s wilful act or omission, the scope (amount) of the traveller’s damage as well as the causal link between the act/omission and the damage. However, the situation may be different if the healthcare service is part of a package travel.

Treatment as part of package travel

The tourism organiser is liable for performing tourism services covered by an agreement on package travel, regardless of whether such services are performed by the tourism organiser or other tourism services providers. This provision establishes the organiser’s contractual, strict liability. The tourism organiser cannot discharge himself of liability by indicating that he entrusted a professional with the performance of a particular service. Therefore, the traveller is entitled to claim full material and non-material compensation against the tourism organiser, who is strictly liable. This confirms a very vast scope of liability of the tourism organiser toward the injured patient in the medical tourism sector, if the healthcare service is part of the medical travel package.

We have recently discussed the legal aspects of liability for medical negligence in the realm of medical tourism, medical tourism in general as well as the patient’s claims with dr Jan Paradowski – an orthopaedist and a surgeon and the Polish Football Association’s physician – and Anna Białk-Wolf – the co-founder and President of the Institute of Research and Development of Medical Tourism – during a live broadcast in Radio Kraków

Vehicles, vehicles everywhere

Jolanta Budzowska11 September 2018Komentarze (0)

The recent judgments of the Court of Justice of the European Union, which tackle the matter of when a vehicle can and cannot be considered “in use”, are getting more and more attention. In particular, the judgment from 28 November 2017 (C-514/16), in accordance to which a vehicle will not be in use when its principal function, at the time of the accident, was not to serve as a means of transport, has sparked discussion about the potential of implementing appropriate amendments into the Motor Insurance Directive (as can be seen from a still fairly recent press release of the European Commission ).

The impact that these potential changes may have on the position of road traffic accident victims may be significant, depending on the jurisdiction. For example, under Polish law, the Polish judicature has presented a standpoint that it is not relevant whether a vehicle was used as a means of transport at the time of the accident when determining whether it was in use. This is reflected, among others, in the judgments of the Supreme Court of Poland dated 19 December 2013 (II CSK 157/13) and 26 February 2015 (III CSK 187/14).

As such, implementing amendments to the Motor Insurance Directive, aimed at limiting the scope of the Directive to only such vehicles that served principally as a means of transport at the time of the accident, could result in a shift that would be detrimental to victims injured in Poland, in certain situations.

The rules regarding limitation in Poland have changed, and here is what you need to know

Michał Krzanowski27 July 2018Komentarze (0)

A recent amendment of the Polish Civil Code, which entered into force on 9 July 2018, introduces some important changes to how limitation functions under Polish law.

The basic limitation period for all claims – unless otherwise stipulated by another provision – has been shortened from 10 to 6 years. This particular change does not influence personal injury claims, the limitation of which is regulated by separate provisions (and which stipulate that such claims expire, in general, after three years have passed from the day on which the aggrieved learned of the damage, and of the identity of the person obliged to remedy it, or should have learned by exercising due care).

However, another important change that was introduced with this amendment is the postponement of the expiration date of claims until the last day of the year (i.e. 31 December of a given year). This means that claims will expire on the last calendar day of the year in which the limitation period elapses (although such regulation applies only to claims with a limitation period of at least 2 years, or more).

Due to the way in which this particular provision has been worded, it is currently not entirely clear whether the aforementioned postponement of claim expiration does or does not apply to personal injury claims. While it would seem that the currently prevailing opinion is that it does, caution is advised, at least during the early stages of the amendment’s “life”.

The amendment also introduced the obligation to indicate the due date of all claims pursued in the complaint. Lack of such information in the complaint will result in the court ordering the claimant to provide it, which will prolong proceedings. As such, it is worthwhile to keep this new requirement in mind when drafting a complaint.

From the point of view of the injured and their lawyers, these changes can definitely be called at least slightly confusing. However, in any event, the worst case scenario is that nothing changes for the injured in regard to the expiration of their claims. In the best case scenario, many injured have just gained more time to pursue their claims in court – and in some cases, considerably more.

← Previous Entries

Next Entries →