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 threat due 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.
[Article by Aneta Mistarz]
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