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EXTRAJUDICIAL MODEL OF LIABILITY FOR MEDICAL DAMAGE - THE CASE OF POLAND

Agnieszka Rabiega-Przylecka

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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