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EXTRAJUDICIAL MODEL OF LIABILITY FOR MEDICAL DAMAGE - THE CASE OF POLAND
Abstract
The aim of this paper is to present and evaluate the new – alternative to the judicial – system of liability for medical which was introduced to the Polish legal system in 2011. It allows to obtain compensation or redress by taking extrajudicial action, under special conciliatory and mediatory procedure conducted before the provincial committees for the adjudication of medical events. Analogous systems of compensation of damage regardless of fault exist in many countries including New Zealand, France, Scandinavian countries, Belgium and Japan taking diverse forms in relation to the scope and form of liability for damage caused by medical treatment. Polish extrajudicial system of compensation for damage caused by medical events is based, inter alia, on the Nordic patterns, in particular Swedish, providing a particular form of insurance without fault (so-called insurance NFPI - No Fault Patient Insurance), as well as on French patterns. Therefore, the Polish system can be named “hybrid model”. Extrajudicial system of redress for damage caused by medical events is a mechanism which facilitates the obtaining of compensation by patients (their legal representatives, heirs) in the cases of personal injury caused by health services in hospitals. The facilitation results from using the extrajudicial procedure especially eased reasons of liability, simplified procedures of repairing the damage or lower costs of the proceedings. The introduction of less formal procedure of compensation is intended to simplify and accelerate the obtaining of compensation by victims, in a way giving higher possibility of obtaining the compensation. However, this system provides a number of limitations, especially relating to the substantive and subjective scope of compensation, the amount of benefits, and the possibility of the "complementary" civil action for failure to obtain full compensation for the damage. Although Polish solutions are based on the patterns developed in other countries, the Polish system - compared with the most frequently cited models like Swedish and French - provides a much more limited possibility to obtain compensation and simultaneously excludes the possibility of using additional judicial procedures in order to demand claims.
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References8
Baczyk-Rozwadowska K., Civil Liability for Damage Done During Treatment, Torun (Poland), 2007, p. 199-200; Baczyk-Rozwadowska K., Swedish Model NFPI and French Model of Compensation for Medical Damage, [in:] Compensation for Damage Resulting from Medical Events. Issues Connected with Civil and Insurance Law, ed. by Kowalewski E., Torun (Poland), 2011, p. 33.
Act of 6 Nov. 2008 on the Patient Rights and the Patient Rights Ombudsman, Journal of Acts 2012.159 with further amendments.
See Kowalewski E., Sliwka M., Walachowska E., Compensation for Damage Resulting from „ Medical Events”. Assessment of Planned Legal Solutions, Law and Medicine, Poland, no 4, p. 23, 2010.
Rabiega–Przylecka A., Extrajudicial Model of Compensation for Damage Resulting from Medical Events, [in:] Liability of Administration and in Administration, ed. by Duniewska Z., Stahl M., Warszawa (Poland), 2013, p. 393.
See Brzezinska – Grabarczyk D., Medical Events [in:] Law on Medical Activity in Practice. Transformation of Medical Establishments, ed. by Brzezinska–Grabarczyk D., Narolski M., Warszawa (Poland), 2012, p. 156.
The insurers obligations pass on to the entity running the hospital in circumstances defined in article 67k para. 10 of the Act on Patient Rights and the Patient Rights Ombudsman, in case of using up maximum amount (1 200 000 PLN) of benefit (compensation and redress) in a 12 month period of insurance as regards all medical events covered by insurance or in case of not taking out insurance on account of medical events.
Journal of Acts 2012.207.
From the data published in” Report on Obeying Patient Rights on the Territory of the Polish Republic” drawn up by the Patient Rights Ombudsman appears that in the period from 1 Jan 2012 to 31 Dec 2012 the committees received totally 432 applications, but in the period of Jan-April 2013 the number of applications rose to 448 – see: The Patient Rights Ombudsman, Report on obeying patient rights on the territory of the Polish Republic for the period of 1 Jan 2012 – 31 Dec 2012 , p. 134 (www.bpp.gov.pl).
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