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!
Dzień dobry!
{ 0 comments… add one now }