- Do medical error and medical malpractice mean the same thing?
A medical error, as defined by the Supreme Court, is an unintentional act, negligence or omission by a doctor, dentist, nurse, midwife or other medical professional that causes harm to a patient.
In colloquial speech, it has become accepted that the terms medical error, medical malpractice and medical malpractice are used interchangeably. As a patient, however, it is worth knowing that they are not the same. It should be understood that the term 'medical malpractice' or 'medical error' is a broader concept than medical error (lege artis). A medical error, as the name suggests, can only be committed by a doctor in the performance of his or her duties.
A medical error can also be committed:
- another medical professional, e.g.: nurse, physiotherapist,
- medical facility, e.g.: clinic, hospital.
A medical error is committed by a person who:
- acts in a manner inconsistent with current medical knowledge,
- does not use the methods and means available to it for preventing, diagnosing and treating illness,
- acts contrary to professional ethics,
- performs its activities without due diligence.
Furthermore, a medical error must be characterised by:
- conduct of a doctor, other medical practitioner, medical facility that is incompatible with the current state of medical knowledge,
- an unintentional act. When the action is deliberate and intentional we are talking about a criminal offence and not a medical error.
A patient or his or her relative who wishes to pursue his or her rights through the courts must prove that, as a result of the actions of a doctor, dentist, other medical practitioner or medical facility:
- injury has occurred,
- demonstrate the causal link between the error committed,
and the damage caused.
It is often difficult for people who suspect that an error was made in the process of diagnosing or treating an illness in relation to them or their relatives to demonstrate all the necessary elements of liability. Therefore, it is always advisable in such cases to seek the advice of a lawyer specialising in the area of medical matters before initiating proceedings. On the websites of law firms, you can find information on which cases the respective entities specialise in and which benefits and compensation for medical errors the injured person or their relatives may apply for.
- Can compensation for medical errors be obtained without a court?
Compensation for medical errors can only be obtained out of court if there is an agreement between the institution and the injured party. Therefore, when it comes to defending your rights, the case will almost certainly end up in court. A medical malpractice case may be subject to both criminal and civil proceedings. There are also minor avenues to enforce one's claims before the authorities dealing strictly with non-medical matters.
- Criminal proceedings
The case will be primarily concerned with proving the defendant's guilt rather than establishing the actual amount of loss and compensation. Any sums awarded by the court to the injured party here will be, as it were, in addition to the main punishment to be meted out to the wrongdoer. This is not an avenue that can satisfy all the claims of the injured party, but a criminal conviction can be a good precursor to a civil action.
Criminal proceedings do not require the aggrieved party to be active (all actions aimed at conviction will be performed by the public prosecutor), but it is worth knowing that the aggrieved party has the right to become involved as an auxiliary prosecutor at the initial stage of the proceedings. If an appropriate request is not made at the beginning of the case, he or she will not have the right, for example, to make evidentiary submissions, question witnesses, give a closing speech, etc.
- Civil proceedings
If the main objective of the injured party is compensation and reparation for his or her losses, a civil action should be filed. This is where you will be able to obtain compensation for the harm you have suffered as a result of a medical error. Here, all the steps, including writing the claim and proving the amount of losses, lie with the claimant.
- Proceedings before the Provincial Medical Injuries Adjudication Board
This procedure makes it possible to obtain confirmation of the medical error and compensation benefits. This procedure takes considerably less time than the above-mentioned and there is no need for a professional attorney during the procedure. Certainly, what characterises this procedure is the low cost of initiating it.
Unfortunately, relatively low amounts of compensation and benefits can be obtained under this procedure, the short limitation period being 3 years from the occurrence of the event.
- Proceedings before the Patient Ombudsman
In order to obtain an additional independent expert opinion at no cost, which can be used in a civil lawsuit, a request for an investigation can be made to the Patient Ombudsman. One of the functions of the Patient Ombudsman is to conduct investigations when he becomes aware of a probable violation of patient rights. Once the Ombudsman has investigated a request and found that a violation of patient rights is likely, he may initiate an investigation against a medical entity. Normally, if specialised knowledge is required to properly resolve a case, especially a violation of a patient's right to treatment in accordance with current medical knowledge, the Ombudsman has the power to request expert opinions from the relevant specialisation.
If the Ombudsman finds that the evidence in the case is sufficient to reach a decision, he issues a decision stating whether or not there has been a violation of the patient's rights.
- Disciplinary proceedings before the Medical Court
The proceedings are aimed at holding the medical practitioner who committed medical malpractice disciplinarily liable.
The request for punishment should include:
(1) the name and number of the right to practise or the number of the limited right to practise;
2) the precise identification of the alleged professional misconduct, indicating the time, place, manner and circumstances in which it was committed and the consequences resulting therefrom;
3) the names and addresses of witnesses to be called at the hearing, as well as other evidence;
4) the grounds for the proposal.
Medical courts adjudicate on cases of professional responsibility of doctors. The first instance is decided by the district medical courts and the second instance by the Supreme Medical Court. The parties in the proceedings before the medical court are the injured party, the doctor or the accused concerned by the proceedings and the ombudsman for professional responsibility. The district medical courts may impose, among others, the following penalties: admonitions, reprimands, suspension of the right to practice in the profession for a period of one to five years, deprivation of the right to practice in the profession.
- How to prepare for a medical malpractice and medical error case?
Medical records are the primary evidence in a medical malpractice case. It is important to know that you always have the right to obtain your medical records from your doctor or medical facility. Medical records presented in a case should be certified as true copies of the original.
Another piece of evidence in the case, if the patient is claiming compensation, are documents proving the material losses suffered by the patient or his/her relatives. It is therefore advisable to collect relevant bills, and preferably named invoices, but also documents proving the costs associated with travelling to the treatment facility or documents proving lost earnings related to the treatment. In addition, when preparing for a claim, it is advisable to seek advice from a law firm specialising in medical malpractice cases.
- How do we choose a law firm to represent us in a medical malpractice case?
Before deciding on a law firm to represent you in a medical malpractice case, it is worth checking:
- whether the law firm has in the past or is currently pursuing medical malpractice cases and, if so, what these cases involved,
- in which proceedings it can represent us,
- Who will represent us in the case,
- what the handling of the case involves and what the law firm's fees will be.
- Can medical malpractice only relate to the wrong choice of treatment?
Medical errors can be divided into two groups:
- diagnostic errors - in simple terms, this is a situation where a patient, as a result of a failure to make a correct diagnosis or a misdiagnosis, has not received appropriate (according to current medical knowledge) treatment;
- therapeutic errors, i.e. situations in which, having made the correct diagnosis, the doctor has not applied the appropriate treatment that is available and in line with current medical knowledge.
It is worth remembering that in any medical or medical error case, you can first seek advice from the Patient Ombudsman, via the free telephone hotline tel. 800-190-590.
Monika Kordowska, advocate
This article does not constitute legal advice, but is merely information providing an overview of the issues identified. The provision of legal advice requires knowledge of the facts of the individual case.