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.]

On May 30th, 2018, the 24th edition of the “Golden Paragraphs” Awards took place.

Jolanta Budzowska04 June 2018Komentarze (0)

Without false modesty I am proud to say that one of the awards has been presented to me in the Best General Counsel category

As the Daily Legal Newspaper (“Dziennik Gazeta Prawna”) writes:

“Golden Paragraphs” is an annual award presented to individuals who, over the past year, have had the greatest influence on the quality of our law and the condition of the judicature. It is granted to authorities, most prominent representatives of the legal professions – judges, advocates, prosecutors and general counsels, who uncompromisingly defend the letter of the law in conflict situations – individuals who are courageous in both their public and professional lives.

 

Złote Paragrafy 2018

The Chapter has recognised my professional activity as a trial lawyer specialising in medical negligence nad patients’ rights cases on a daily basis. While I remain grateful for this recognition, I nevertheless believe that this award should go to each and every injured patient and their family members – they are the courageous ones, making the decision to fight for justice in court and taking the burden that comes with this decision onto their shoulders.

It is thanks to them that the safety of the treatment process has improved greatly in these past years and the patients is no longer perceived as the object of the treatment, but rather as its subject. A subject to be reckoned with.

The selection of Mr. Stanisław Zabłocki, a Supreme Court Judge, as a laureate of the Best Judge category undoubtedly indicates the rank of the awards ceremony. When accepting the laurel, judge Zabłocki said:

I treat this award as symbolically presented to one of the judges in recognition of the merits of the entire judicial community who has been fighting for righteous law over the past year.

Prosecutor Bartosz Biernat has been presented an award in the Best Prosecutor category. Mr. Biernat’s actions have led to the acquittal of Tomasz Komenda who has spent 18 years in prison after being wrongfully sentenced.

I share my title ex aequo with Atty. Karolina Kędziora, the President of the Polish Society of Anti Discrimination Law. The awards for Best Advocate have been received by Atty. Martin Pnfur and Atty. Bogumił Kuś who have been fighting for the rights of Polish entrepreneurs in Germany.

Judge Zabłocki has since been so kind as to write a few words to me after the ceremony:

Mrs. Budzowska, please accept my sincerest congratulations for the award presented to you. You are doing a splendid job! And all for the benefit of the injured party. Once again I express     great appreciation.

Thank you, judge Zabłocki for these incredibly kind words. Above all, however, I thank all injured patients: for believing that what we do together makes sense.

How informed are you?

Michał Krzanowski10 May 2018Komentarze (0)

Many medical negligence cases come with an additional layer. On one hand, there is the alleged negligence itself, on the other – the matter of the patient’s consent to be treated, and in particular, whether the consent was informed.

Under Polish law, the rule is that a physician may provide healthcare services only upon obtaining the patient’s consent. There are some exceptions to this rule, but they concern the most extreme circumstances, such as situations where the patient requires immediate medical assistance, and due to his or her age or state of health, is incapable of giving consent, and also when it is not possible to reach their statutory representative or guardian.

Polish law distinguishes between two different forms in which consent may be provided, that is: in writing, and in any other form (most often oral). The rule is that consent may, in general, be given in any form, however consent in writing is required in cases where the treatment in question is a surgery – any kind of surgery – or if the planned treatment or diagnostics carries with it a heightened risk for the patient.

The duty to obtain consent in the appropriate form, and the burden of proof that the consent was obtained, rests upon the provider of healthcare services, which is of significance when it comes to court disputes.

Just obtaining consent, even in the appropriate form, will often not be enough, though. Under law, each physician is obliged to provide the patient with information pertaining to:

  • the state of the patient’s health;
  • the diagnosis;
  • the proposed and possible therapeutic and diagnostic methods, as well as foreseeable consequences of applying these methods, or of abstaining from applying these methods;
  • the results of treatment;
  • the prognosis.

In situations where consent in writing is required, that is when the treatment in question is a surgery, or if the treatment or diagnostics carries with it a heightened risk for the patient, all of this information has to be provided to the patient prior to obtaining their consent – of course, as far as possible.

It is widely accepted that the physician is not obliged to inform the patient about each and every possible complication that can be associated with a particular medical procedure. Instead, the standard is that the patient has to be informed about the most common complications, as well as the most threatening ones (even if they are fairly rare).

At the same time, the type of the planned medical procedure, and also the circumstances in which treatment is to be provided, are also an important factor in respect of the scope of information that the patient should receive. The scope of required information is not universal, and will not always be identical, even in regard to one and the same, specific procedure.

The Supreme Court of Poland has pointed out that the degree of information that should be provided to the patient prior to obtaining consent will be different if the planned treatment is performed in order to save the patient’s life, in which case it is sufficient to inform the patient only of the typical negative consequences and complications of a given medical procedure (or even sometimes to not give any information). However, if treatment is provided without any absolute and pressing indications, and in particular if it would also be reasonable and justified to abstain from that specific treatment altogether in the patient’s condition and circumstances, then the duty to inform the patient is considered to be much more wide, and the information should be much more detailed (judgment of the Supreme Court of Poland of 26 April 2007, case citation II CSK 2/07).

Why is this important? As the Supreme Court of Poland pointed out, providing healthcare services without prior informed consent may lead to liability on part of the provider for all consequences of said services, even in the absence of negligence.

In addition, providing healthcare services without prior informed consent is in itself considered a separate delict under Polish law, in the form of an infringement of the patient’s rights to information about their state of health, and the right to decide the course of their treatment – which may lead to a separate award, solely as compenstation for such infringement.

Hopefully this post has been informative!

The BFP law firm now in the Legal 500

Michał Krzanowski24 April 2018Komentarze (0)

The Editorial for the Legal 500 EMEA (Europe, Middle East and Africa) 2018 has just recently been published. For the very first time, the Personal Injury Team at the BFP law firm has taken part in the research, and we were very happy and proud to find out that the firm has been recognized in the ranking. We have been ranked in the Insurance category, and you can find the appropriate link below:

https://www.legal500.com/c/poland/insurance

The Legal 500 is a prestigious UK-based directory which provides comprehensive worldwide coverage on recommended law firms.

We would like to thank the Editors for this recognition, and also our Clients, without whose positive feedback this would likely not be possible.

We are looking forward to many more years of rendering professional assistance to the injured, including in cross-border cases!

Redress for non-material damage suffered by the victim’s closest relatives

Jolanta Budzowska29 March 2018Komentarze (0)

In one of my cases I am representing clients who are the parents of a child suffering from cerebral palsy – an unfortunate result of medical negligence during childbirth. The parents are pursuing redress for their strictly non-pecuniary damages resulting from the severe disability of their child (in particular, an infringement of their personal rights in the form of the right to an undisturbed family life, with all of its consequences, such as forfeiting personal careers, as well as social life, in order to take proper care of their disabled child, and also depriving the parents from being able to form a bond with their child due to the mental disability).

In Poland, the matter has been a topic of heated discussion in the doctrine for quite some time, and the judicature was also divided. The issue is whether the close relatives of the aggrieved, who were not directly victims of tort, are entitled to such a claim as described above. The scale of this issue is large, since the problem relates not only to persons injured as a result of medical negligence, but also to all victims who have suffered serious injuries, and their closest relatives. This refers to, inter alia, the families of people injured in road traffic and aviation accidents, accidents at work, as well as damage caused by defective products.

In the case described above, my clients were awarded substantial compensation by the court – the injured child received PLN 1.2 million (approximately EUR 286,000), his mother PLN 300,000 (approx. EUR 72,000) and his father PLN 200,000 (approx. EUR 47,000) – however following the Defendant’s cassation complaint, the case was heard by the Supreme Court of Poland. The Supreme Court has decided to end the disputes surrounding this matter by means of adopting a resolution of 7 Supreme Court judges. This special procedure often tends to set the course of court judgements for years to come, which is why the matter is of importance.

Yesterday a hearing was held before the extended formation of judges of the Supreme Court, and its resolution stated as follows:

“The court may award compensation for non-material damage to the closest relatives of a victim who has suffered severe and permanent health detriment as a result of a tort.”

This resolution is beneficial not only for my clients, but also for all injured persons whose state of health has radically changed their lives and the lives of those closest to them. When arguing before the Supreme Court yesterday I have used information provided by my colleagues within PEOPIL, i.a. Marie Cilínková from Czech Republic, Jean-Pierre Bellecave from France, Silina Pavlakis from Greece, Tibor Pataky from Hungary, John Beer from the Netherlands and Liam Moloney from Ireland.

Thank you – my success is Your success, and a fulfilment of one of PEOPIL’s main objectives!

In conclusion, it can be stated that the Polish Supreme Court, similarly to a number of other Member State courts, has confirmed the right to a redress award for the harm suffered by the closest relatives of a victim, especially for the infringement of their personal right in the form of the right to an undisturbed family life.

 

Compensation for aircraft passengers – a warning call on limitation periods (based on the example of the emergency landing of a Boeing 767 aircraft on November 1st, 2011 in Warsaw)

Jolanta Budzowska09 January 2018Komentarze (0)

A few days ago, a final report on the causes of the Boeing 767 emergency landing at the Okęcie Airport in Warsaw in 2011 was published.

While Captain’s Tadeusz Wrona’s piloting skills prevented a catastrophe, the passengers unfortunately still had to go through a debilitating, traumatic experience, and suffered mental injuries as a result.

A civil claim for compensation for pecuniary and non-pecuniary damages was filed on the first anniversary of the accident, i.e. on November 1st, 2012, against the aircraft manufacturer, Boeing Company, as well as the servicing company, Mach II. Representing the victims’ interests were law firms which specialise in aviation accidents: Wisner Law Firm from Chicago, Stewarts Law of London from England and Budzowska Fiutowski and Partners. Legal Counsels (BFP). The final number of plaintiffs in the proceedings initiated in the United States exceeded 130 (out of 231 passengers who were aboard the Boeing 767), including 103 clients who were directly provided with legal assistance by my law firm: Budzowska, Fiutowska and Partners. Legal Counsels.
The case settled in April of 2015. I have written extensively on this matter in the “On the wings of justice” entry. http://personalinjurylawyers.pl/on-the-wings-of-justice/
The Polish State Commission for Aircraft Accidents Investigation, after six years since the accident occurred, and almost three years after the parties have accepted the settlement agreement, determined why the LOT aircraft had to be landed on its belly, after the landing gear failed to deploy.

The document indicated reasons that, according to the experts, have led to the accident. The Commission concluded that the first cause of the accident was damage to the hydraulic system, responsible for powering the primary landing gear system. Following this malfunction, the crew encountered further problems when trying to run an alternative system, which also failed. The reason of this was a tripped fuse. The fact that the crew has not detected that the fuse was in an “off” position (tripped) has been determined to be the another cause of the accident. The crew focused on only one of the fuses, that is the one responsible for an alternative landing gear system, not knowing that they ought to also check the second fuse. The crew’s checklist did not include information about the fuse, and neither was it mentioned by the mechanic with whom the crew consulted before landing. The Commission was unable to determine the time when the fuse has been tripped. This is not indicated by any warning system, and the flight data recorders do not register the fuse’s work. The Commission recommends that in the future the procedure of fuse inspection should be put on the checklists.

Even after a few years since the claim was filed, injured passengers have still been contacting me, requesting that I represent them. For many of them, the two-year limitation period applicable in this case was far too short to recover from trauma and move on, allowing them to even consider undertaking legal action. Some of the passengers simply waited for the Commission’s report. Unfortunately, due to the limitation period, it was no longer possible to obtain compensation for them.

The overall conclusion is that, in most cases, waiting to initiate legal procedures aimed at seeking compensation for personal injury is a bad idea. The limitation periods in different legal regimes are often shorter than the timeframe in which the circumstances of an accident are explained through official procedures.

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