Pursuing of compensation from a person who caused a damage, requires proving that an activity of a certain person and his/her medical negligence were culpable, and that between this culpable action and an incurred damage there is a so called adequate causal nexus.

In other words, a patient demanding compensation for medical negligence from a hospital or a doctor is obliged to prove that a certain hospital or a doctor is guilty of such an activity which caused a damage to a patient. It is important that guilt of a hospital for medical negligence does not have to be deliberate - it is enough if it may be proved that a hospital or a doctor leading treatment has not made due efforts. At the same time it means that demanding from a hospital or a doctor reparation of a damage will be excluded if a damage appeared despite of fulfillment by a hospital or a doctor of all standards of procedure, as well as in the situation when a damage was caused by patient's guilt.

It is also important that claiming compensation for medical negligence (in the broad meaning of that expression) is also possible when an operation or a treatment has been undertaken without an explicit consent of a patient or when before granting such a consent a patient has not been informed about a risk connected with an operation, its possible effects and alternative methods of treatment.

- process of pursuing compensation

Before a suit for compensation is filed, it is necessary to undertake proper preliminary activities aiming at obtaining a possibly complete documentation which shall be afterwards used while preparing a suit and as an evidence in court proceedings.

The first thing to be done by a patient is to file a motion for a full documentation, certified as consistent with an original, in medical posts which activities are connected with a compensation claim. In some situations it is necessary to obtain such documentation also from those posts in which a patient has been treated before or after a treatment or an operation connected with a compensation claim.

When a decision about pursuing compensation claims in a court has been undertaken, a patient should gather all kind of documents confirming an amount of expenses born in connection with an incurred damage. These are especially invoices and bills for bought medicines, paid visits by experts, participation in rehabilitation turns, costs of travels to hospital, as well as paid help of third persons, and also costs of adaptation of a flat or a car to needs of a disabled person, etc.

It is advisable to prepare a specification of costs born in connection with an incurred damage in a form of a table, as well as a specification of costs born monthly.

Gathered documents will be used in the suit. A prepared suit shall be afterwards filed in a court. Proceedings in front of a court of the first instance usually last about a period of one year up to three years. Then, if there is an appeal of any party against a judgement, it shall be followed by proceedings in front of a court of the second instance, lasting approximately about a year. A judgement of a court of the second instance is final and valid, however, in some circumstances it is possible to file a cassation claim to the Highest Court.

- what is to be claimed

Claims connected with medical negligence may be of three types. The first one is a compensation understood literally. A compensation aims at repayment of born material losses (expenses on medicines, experts, help, treatment, etc.); therefore an amount of compensation depends on the amount of those losses. The second type is a claim for redress. The aim of redress is, in contradiction to compensation, to recompense non-material losses (often called moral losses) - like e.g. a body injury or a health disorder, physical and mental suffering connected with it, a possible necessity to change a way of life, worsening of life's perspectives, etc. The last possible type is a claim for a pension. A patient is entitled to a pension when a consequence of an incurred damage is an entire or partial loss of work ability, increase of needs or reduction of possibilities of prosperity for the future.

- costs of proceedings

Court proceedings are connected with a necessity to bear costs related to them. Filing a suit requires payment of a fee which amounts to 5 % of a pursued claim (but not less than 30 zloty). Additionally, during the proceedings it is usually necessary to ask experts for an opinion, which means bearing costs for its preparation. It also happens that a party must pay back to witnesses born costs of travels to the court and must pay costs of translations.

When a party cannot bear the above mentioned costs because of a bad property situation, a party may file a motion for exemption from court costs. Filing a motion requires to appoint that a party is not able to pay costs without prejudice for maintenance of his/hers or his/her family. A decision on exemption from court costs is made by the court: it may exempt a party from costs in the whole or only partially (usually in such a case the court exempts a party from an obligation to pay a suit fee), or may deny exemption in the whole.

It is to be underlined that an exemption mentioned above is of a temporary character because according to a general rule costs of proceedings are imposed on a losing party.

The above mentioned rules do not concern costs of representation of a party by our legal office. Remuneration for leading the case is settled individually.

- contact

Persons interested in services of the legal office in matters of medical negligence are kindly asked to contact Karolina Kolary, a legal counsellor, or Beata Śpitalniak - phone number: 012 428 00 70. Apart from that lawyers from the legal office render gratuitously information concerning cases of medical negligence each Wednesday from 2.00 p.m. till 3.00 p.m. on Skype - our address: kancelariabfp.

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