A patient whose patient rights have been violated can enforce their rights.
The civil liability of medical practitioners, first and foremost: doctors, nurses and midwives is a financial liability towards the injured party, i.e. the patient or his or her relatives, and its main function is to compensate for the damage to legally protected goods, in particular such as health, life and privacy. As a rule, it is an unlimited liability; limitations occur with enforcement. The medical practitioner as the perpetrator of the damage becomes the debtor and is liable for the debt (damage), with all his/her present and future assets. The medical practitioner (as debtor) may perform voluntarily, while in the absence of voluntary performance by the medical practitioner (debtor), the injured party (creditor) may enforce its rights in court and then satisfy its claim through enforcement proceedings.
1. Sources and prerequisites of civil liability
The source of civil liability of a medical practitioner may be a contract (contract) or a tort. In the first case, we are talking about contractual liability of a medical practitioner, which is a consequence of causing damage to a patient as a result of non-performance or improper performance of an obligation (Article 471 of the Civil Code). In the second case, we are talking about tort liability, consisting in causing harm to the patient through a tortious act (i.e. conduct contrary to the law, principles of prudence, principles of professional ethics or principles of social co-existence) (Art.415 et seq. of the Civil Code).
Contractual liability can be based on the principle of fault (the medical professional is liable only if fault can be attributed to him or her) or on the principle of strict liability (the liability of the medical professional is aggravated, he or she is liable regardless of his or her fault for the mere fact of causing damage through non-performance or improper performance of an obligation. Tort liability can be based on fault, strict liability or equity (based on principles of social intercourse).
In order for civil liability to arise, its prerequisites must be met:1. the harmful event for which the law makes the debtor liable (non-performance or improper performance of an obligation or a tort),2. damage of a pecuniary nature (to person or property) or non-pecuniary nature (harm suffered),3. a causal link between this remedy and the damage.
1.1.Guilt of the medical professional
The most common cases of liability of a medical professional towards a patient are claims based on Article 415 of the Civil Code: "Whoever, through his fault, has caused damage to another, is obliged to compensate for it". The concept of fault consists of two elements that must occur together - objective and subjective.
The objective element is the unlawfulness of the conduct of the perpetrator of the harm, broadly construed. Thus, the objective element of fault is fulfilled by any behaviour of a medical practitioner which is contrary to the provisions of law (including those specifying the rules of exercising a given medical profession and the rights of a patient), the principles of social coexistence, the principles of professional ethics or the duty of care which every person in society should observe in order not to cause harm to another. In the latter case, in relation to the medical professional, this refers in particular to behaviour that does not comply with the rules derived from the principles of current medical knowledge. The conduct of a medical practitioner will be unlawful if, without the justification envisaged by the legislator, he violates professional secrecy, if he unjustifiably refuses to provide a health care service or refrains from its provision, if he encroaches into the sphere of the patient's inviolability without his consent or against his will (in the absence of statutory authorisation). In the case of a contractual relationship between a patient and a healthcare professional, the objective element lies in the non-performance or improper performance of the obligation itself. In general, it can be stated that the objective element of fault will be the failure of the medical professional to fulfil his or her professional obligations, which should be considered broadly, as those that derive from professional status regulations, codes of ethics and that have been stipulated in the contract concluded with the patient.
The subjective element of guilt is the so-called "imputability", the "capacity to conceive", the "possibility to impute" to the perpetrator a negative assessment of his/her behaviour. The subjective element of guilt refers to a person's mental experiences, linking guilt to the possibility of accusing the perpetrator of making a wrong decision and, consequently, of reprehensible behaviour (action or omission) in a specific situation. In the doctrine of law, a distinction is made between: culpability relating to medical technique (ignorance, carelessness in conduct, negligence, carelessness, inattention) and culpability not relating to medical technique (e.g. lack of necessary supervision, refusal to provide assistance, failure to inform the patient of the procedure and the risks involved, giving a blood transfusion of the wrong type, etc.). However, the formulation of such an allegation requires, on the part of the harm case, adequate mental qualifications. Defective decision-making and behaviour can only be attributed to a medical professional who was in a position to assess his or her conduct, i.e. when he or she could have acted with sufficient discernment. When charging the perpetrator of the damage with culpable behaviour (act or omission), it is not enough to show that he or she failed to observe the criteria of required diligence. It is still necessary to take into account his state of consciousness, will and foresight of the consequences of the conduct. Only the juxtaposition of these elements will make it possible to decide on the culpability of a particular medical professional.
Guilt, as a subjective premise, can occur in two forms: intentional guilt (with direct or possible intent) and unintentional guilt (recklessness and negligence). It can be said, without risk of error, that cases of intentional fault on the part of a medical practitioner are extremely rare. By contrast, cases in which a medical professional may be accused of negligent negligence are common and consist of situations in which a medical professional may be accused of failing to exercise due care in the performance of medical acts. In practice, the possibility of an allegation of malpractice varies. First of all, it refers to a certain model of diligence proper to the relations of a given type (Article 355 § 1 of the Civil Code). The measure of diligence used to assess the behaviour of the perpetrator of the damage is of an abstract nature (independent of the personal characteristics and qualities of the perpetrator), as it is constructed as a model of the proper conduct of a medical professional who finds himself in a specific situation. The standard of "good professional" is flexible depending on whether it is a novice doctor, nurse, general midwife or specialist, whether it is an assessment of the conduct of practitioners in a modern clinic or in a non-clinical hospital. However, a certain minimum of knowledge and diligence on the part of the medical practitioner exists regardless of where the medical profession is practised. The standard is also dependent on the state of knowledge, and is variable with advances in medical science. In terms of contractual liability, high professional qualifications may lead to a stricter standard of diligence.
A patient who brings an action for damages must prove the grounds for his claim, including the fault of the medical professional. There is no presumption of fault on the medical practitioner, but he or she is obliged to exercise due care in the process of providing health services, the lack of which must be proven by the plaintiff. The medical professional in turn has to prove that he or she duly fulfilled his or her duties and acted in accordance with the principles of medical knowledge. It is up to the plaintiff to prove the contrary.
Pursuant to Article 227 of the Civil Code, the subject of evidence are facts which are of significant importance for the resolution of the case. In a pending case, it is of particular importance that the court thoroughly investigates and comprehensively considers the evidence gathered. Medical records of the patient, including records maintained by the hospital, clinic, persons employed therein or a doctor, nurse midwife exercising their profession within the scope of their own professional practice, are essential evidence. According to the position of the Supreme Court, any deficiencies that cannot be remedied in the patient's medical records cannot be used in a trial to the detriment of the patient. As a rule, it is up to the parties to prove evidence, but the court may also admit evidence not indicated by the parties (art.232 of the Code of Civil Procedure). Often, an expert opinion will be an important piece of evidence, as an expert can help the court to properly assess the conduct of medical practitioners in terms of the medical activities performed. In order to avoid possible suspicion of bias, experts should be appointed from a different area than the area of the medical practitioners' professional activity that caused the injury. The court may use any evidence, both direct and absolutely certain, as well as indirect evidence with a high degree of probability, and may consider as established facts that are significant for the outcome of the case if such conclusions can be drawn from other established facts (Art.231 of the Civil Procedure Code), which means that it may assume the fault of the medical professional based on a presumption of fact in the absence of evidence to the contrary.
Damage is the basic premise of civil (compensation) liability. There is no statutory definition of damage, but in the doctrine of law the term most generally refers to any damage to legally protected goods or interests suffered by the injured party. Two types of damage are distinguished:
- property damage (material damage to person or property),
- non-pecuniary damage (harm suffered, i.e. physical suffering and moral harm).
The damage may be caused to the patient or as a result of the death of the patient to indirectly injured persons (relatives) and to a child yet to be born (nasciturus). The damage to property may be bodily injury or health disorder, losses resulting from the total or partial loss of earning capacity, from the increase in the needs of the injured person or from the decrease in his or her prospects of success in the future, the costs of necessary medical services and other reasonable expenses, the costs of professional retraining, the loss of income which the injured person could have achieved as a result of the bodily injury or health disorder. In the event of the death of the injured person, the damage is the loss which the relatives suffer as a result, such as funeral expenses, property damage resulting from the loss of means of subsistence, deterioration of the life situation. In accordance with the wording of Article.361 § 2 of the Civil Code. Article 361 § 2 of the Civil Code stipulates that there are two types of damage to property: loss (damnum emergens), consisting in the reduction of the property of the injured party as a result of an event to which one's liability is connected, and lost profits (lucrum cessans), which means that the property of the injured party has not increased as it would have happened, had the event to which one's liability is connected (causative event) not occurred.
Non-pecuniary damage, or harm, usually involves personal injury, but can occur even where there is no pecuniary damage. Non-material harm will be the physical and mental suffering caused by a defectively performed act in the exercise of a medical, nursing or midwifery profession, as well as even with a properly performed act but without the patient's consent.
Determining the extent of the damage can be done by two basic methods. The first, objective, consists in determining the amount of damage in relation to a specific asset. The second, differential, consists in comparing the current state of the injured party's assets with the hypothetical state of his or her assets as they would have existed if the injurious event had not occurred. In doing so, account must be taken of the spontaneous development of the patient's illness affecting the deterioration of his or her state of health, as well as the future damage resulting from the faulty conduct of the doctor, nurse or midwife. In the event of the possibility of damage other than that existing at the time of adjudication, the injured party may request that the liability of the doctor, nurse, midwife (treatment provider) be established for damage that may occur in the future.
1.3 Causal link
Pursuant to Article.361§ 1 of the Civil Code, the liable for damages, in the case under consideration, medical professionals, are only liable for the normal consequences of the act or omission from which the damage resulted. This provision expresses the principle of causality, limited, however, to cases of normal, adequate causation (normal consequence). It is characteristic of the theory of adequate causation that, among all the conditions for the occurrence of damage, it attributes legal significance only to those that increase the possibility (probability) of the occurrence of the effect under investigation. This allows us to recognise the legal significance of those effects that are ordinary (typical, normal) for the investigated event, and to reject those that we assess as unusual, atypical, abnormal. The recognition of the typicality of the effect of the examined event is not affected by the circumstance of foreseeability of the consequence by the perpetrator of the damage or its foreseeability possible for the average participant of the event, as foreseeability is not a category of causation, but of fault.
Undoubtedly, establishing the existence of a normal causal link between the phenomena under investigation is a complex exercise. Assuming that the construction of a causal link is a reflection of the surrounding reality, expressed in causal links between various phenomena, it is necessary, first of all, to establish those causal links that connect, in general, the examined phenomena the damage and the event of which it is the result. This procedure is a manifestation of the reproduction of reality, based in practice on the knowledge and life experience of the judge or expert evidence.
An adequate causal link between the behaviour of a medical professional and the damage can be direct, or it can also be indirect. It is therefore irrelevant whether the cause is distant or proximate, as long as the effect is still within the bounds of "normality". Establishing a causal link between the fault of a medical professional and the damage caused, or assessing in a specific case whether there is a normal causal link between fault and damage in medical trials, will often be very difficult. In medical litigation, it is often not possible to establish a certain causal link, since in the light of current medical knowledge, in most cases it is only possible to speak of a high degree of probability and rarely of certainty or exclusivity of causation. Therefore, it has been accepted as a well-established principle in Supreme Court case law that a high degree of probability is sufficient to establish a causal link. By contrast, proof that some cause other than the negligence of the medical professional may or may not have caused the patient's injury does not relieve the medical professional of liability. Neither the multiplicity of causes nor the increased risk of the medical action of the doctor, nurse, midwife (e.g. because of the patient's state of health) excludes the medical professional from liability if at least one of the causes was his negligence.
Compensation for the damage caused to the patient (or to those indirectly injured by the patient's death) shall be by the payment of an appropriate sum of money, as a rule determined by the court in a judgment. Compensation, as remuneration for the harm suffered by the patient, may take the form of:
- A monetary benefit compensating the property damage suffered by the injured party or a benefit restoring the previous state of affairs (Article 363 of the Civil Code).
- A single monetary benefit covering costs and expenses incurred in connection with bodily injury or disorder of health, if necessary and purposeful; for example, the amount of the benefit may cover the costs of: treatment, convalescence, rehabilitation, purchase of rehabilitation equipment, necessary care of third parties, retraining. At the request of the injured party, the medical professional who is obliged to compensate for the damage should pay in advance the sum needed for the costs of medical treatment, and the sum needed for the costs of preparation for another profession. The medical professional liable for the damage shall not be relieved of the obligation to pay the said costs if they did not improve the victim's state of health, if they were justified in the given situation.
- A single monetary benefit as compensation for the harm caused to the patient (Article 445 § 1 of the Civil Code), for physical or mental suffering, caused by e.g. disability, loss of function. The award of this benefit is subject to the discretion of the court deciding the case, but this must not imply arbitrariness. The court should give reasons both for and against the award. It should be noted here that a claim for financial compensation for non-material damage can only be made in the case of liability in tort.
- An annuity as a periodic benefit in the event of the injured person's loss of earning capacity or an increase in his or her needs or a deterioration in his or her future prospects (Article 444 § 2 and 3 of the Civil Code).
- Capitalised annuity as a one-off payment in lieu of periodic annuities (art.447 of the Civil Code).
- Monetary compensation in the event of harm caused by culpable violation of a patient's rights other than by causing bodily injury or health disorder (Article 4(1) of the A.P.P. in conjunction with Article 448 of the Civil Code).
In the event of a patient's death, compensation claims are available to those who have incurred the costs of treatment and funeral (art.446 § 1 of the Civil Code) and to the relatives, with the claims of these persons being independent in nature and generally related to the deterioration of their life situation due to the death of the patient. A doctor, nurse or midwife may be obliged to provide benefits:
- To relatives in respect of whom the deceased had a maintenance obligation, an annuity in an amount not greater than that to which the deceased was obliged.
- To the relatives to whom the deceased voluntarily provided the means of subsistence, an annuity is payable insofar as this is required by the principles of social co-existence (art.446§ 2 c.c.).
- To the closest members of the family, a one-off compensation taking into account the damage not compensated by the pension awarded (art.446 § 3 of the Civil Code). In addition, in the case of a culpable violation of the patient's right to die in peace and with dignity, the court may award an appropriate sum of money (fulfilling the function of compensation) to a social cause indicated - by the spouse, relatives or affinities to the second degree in a straight line or the statutory representative (Article 4(2) of the A.P.P. in connection with Article 448 of the Civil Code).
1.5 Contribution of the victim
Pursuant to Article 362 of the Civil Code, the obligation to compensate for damage will be appropriately reduced in accordance with the circumstances if the injured party has contributed to the occurrence or increase of the damage. In such circumstances, the obligation to compensate for the damage is appropriately reduced according to the circumstances, in particular the fault of both parties. When assessing the fault of the injured party, it is necessary to compare the conduct of the injured party with a certain pattern of behaviour and determine how a prudent person would have acted under the circumstances. It is worth emphasising that mitigation is the court's prerogative and not its absolute obligation, even in the event that an obvious contribution of the injured party is established. It is nevertheless advocated that in judicial practice, departure from mitigation should be the exception, in particularly justified cases, and not the rule.
1.6 Limitation of claims
Subject to the exceptions provided for by law, civil property claims are subject to the statute of limitations (art.117 et seq. of the Civil Code). It is left to the will of the interested party (defendant doctor, defendant nurse, midwife (treatment entity)) to make use of the plea of limitation. A time-barred claim is not extinguished, it exists in the form of a so-called incomplete claim, but it cannot be successfully asserted and enforced if the obliged party (the defendant medical professional) makes use of the plea of limitation. The exercise of this plea consists of raising it in a lawsuit. The court does not take the statute of limitations into account ex officio which means that the exercise of this plea requires the will and action of the defendant medical professional.
As a rule, a claim for compensation for damage (both property damage and non-property damage) caused by a tort is time-barred three years from the date on which the patient became aware of the damage and (conjunction) of the person obliged to compensate for it. This conjunction is particularly relevant when the patient has used medical services provided by different persons and it is difficult to determine which one caused the damage. In any event, the claim is time-barred ten years from the date on which the harmful event occurred. If the conduct of the medical professional causing the damage bore the hallmarks of a criminal offence, the claim is time-barred ten years from the date of the harmful event. The offence must be established by a criminal court judgment.
If the patient was bound to a civil law contract with a medical practitioner, the statute of limitations runs ten years after the non-performance or improper performance of that contract.The time limit for indirectly injured persons runs from the moment they become aware of the loss of a loved one (art.446 § 2 of the Civil Code) or of the significant deterioration of their life situation (art.446 § 3 of the Civil Code) and of the person obliged to compensate for this damage.
2. criminal liability
A person who has committed a criminal offence is subject to criminal liability. A criminal offence is a human act forbidden by the law in force at the time of its commission, which is a culpable act and whose social harmfulness is higher than negligible. It is emphasised in the doctrine of law that, modern criminal law does not know the types of offences that would have special application in so-called medical cases, and therefore the norms that apply in a broader scope are applicable here . In particular, the following offences can be pointed out: manslaughter of a human being (art.155 of the Criminal Code), manslaughter of "grievous bodily harm in the form of: 1) depriving a human being of sight, hearing, speech, ability to procreate, 2) other severe disability, severe incurable or long-lasting illness, real life-threatening illness, permanent mental illness, total or significant permanent inability to work at an occupation or permanent, significant disfigurement or disfigurement of the body (art.156 § of the Criminal Code), 3) unintentionally causing an infringement of bodily organ functions or a disorder of health other than those specified in art.156 (Article 157 § 3 of the Penal Code), 4) unintentional exposure of a person to direct danger of loss of life or grievous bodily harm (Article 160 § 3 of the Penal Code), 5) failure to provide assistance to a person in a situation of imminent danger of loss of life or grievous bodily harm (Article 162 § 1 of the Penal Code), 6) performing a medical procedure without the patient's consent (Article 192 § 1 of the Penal Code).
Failure to provide assistance to a patient can only constitute an offence in cases where the medical professional had a duty to provide it. A circumstance of fundamental importance in order to establish the grounds for possible liability of a medical professional for failing to provide a health service is whether, in a specific case, the medical professional was or was not the so-called guarantor of the safety of the person at risk in terms of his or her health and life.
A medical practitioner is such a guarantor only if the particular person in relation to a particular patient is in a particular legal relationship consisting in the fact that, by virtue of his medical profession in the context of his employment as an employee or non-employee in a medical establishment or under a civil law contract with a patient, he is obliged to provide health services to the patients of that medical establishment within the framework and scope assigned to him by the management of that establishment. In such a framework and to such an extent, therefore, she becomes a guarantor towards those patients, with a specific legal obligation to prevent adverse health effects. When such a relationship between the medical professional and the patient does not exist, he or she does not become a guarantor of the non-occurrence of these effects, and his or her criminal liability can only have a basis in Article 162 of the Criminal Code and remain within the subjective framework defined by it.
In summary, according to Article 2 of the Penal Code, only the person on whom a specific legal duty to prevent consequences was imposed is subject to criminal liability for a consequence crime. The precise determination of the legal sources of such an obligation is therefore of fundamental importance here, as the nurse's criminal liability depends on this.
3. professional liability
Professional liability is a legal liability in the sense that its rules are defined in detail by the applicable law. This liability is not incurred before common courts or administrative bodies of the state, but the law authorises specially appointed self-government bodies to exercise it in the form of ombudsmen of professional liability and a court appointed within the self-government of doctors and dentists, nurses and midwives, laboratory diagnosticians, pharmacists. Professional liability is exercised by members of the self-government and, in addition, by citizens of the European Union Member States temporarily and occasionally exercising a medical profession in the territory of the Republic of Poland.
Unlike criminal liability, which is based on the commission of an act that corresponds to the description in the Penal Code Act, the basis for professional liability of medical professionals has been very generally defined, without indicating specific behaviour qualified as professional misconduct.
A medical practitioner bears professional liability for professional misconduct that is a violation of a provision of the law and those that are a violation of professional ethics. Thus, in order to incur professional liability, it is not necessary to violate a provision of the applicable law; a violation of ethical principles is sufficient. It is worth recalling here that the legal provisions governing the professions of doctor and dentist, nurse and midwife, laboratory diagnostician and pharmacist are to be found both in the laws regulating their professional statuses and in the Law on Medical Activity and other specific laws on various aspects of the exercise of medical professions (e.g. the Law on Infectious Diseases, the Law on Mental Health Protection).
The essential sources of ethical principles are: Code of Medical Ethics of 2 January 2004; Code of Professional Ethics of Nurses and Midwives, appendix to Resolution No. 9 of the 4th National Congress of Nurses and Midwives of 9 December 2003; Code of Ethics of a Pharmacist of the Republic of Poland adopted at the Extraordinary National Congress of Pharmacists in Lublin on 25 April 1993. Code of Ethics of Laboratory Diagnostician, Resolution No. 4/2006 of the Extraordinary National Congress of Laboratory Diagnosticians, Warsaw, 13 January 2006.
In cases not provided for by codes of ethics, ethical rules may also be found in good practices adopted by the medical community. Proceedings for professional liability for the same act take place irrespective of criminal proceedings for a criminal offence, proceedings for a misdemeanour or proceedings initiated in an organisational unit in which specific provisions provide for such proceedings. However, it may be suspended until the completion of the criminal proceedings for the offence or the proceedings for the offence.
Proceedings on the professional liability of a doctor, nurse, midwife include:Checking activities, the purpose of which is to examine the circumstances necessary to determine whether there are grounds for initiating an investigation. In the course of checking activities, there shall be no expert evidence or activities requiring the drawing up of minutes, with the exception of the hearing as a witness of the person making a complaint against a medical practitioner.
The investigation procedure, its purpose being to determine whether an act likely to constitute professional misconduct has been committed, to clarify the circumstances of the case and, if the elements of professional misconduct are established, to identify the offender and to collect, secure and, to the extent necessary, record evidence for the professional court.Proceedings before the professional court, its purpose is to hold the perpetrator of professional misconduct accountable and to uncover the circumstances conducive to the commission of professional misconduct, also to prevent them and to strengthen respect for the rights and principles of social coexistence.Enforcement proceedings, its purpose is to enforce the decisions made in the course of proceedings before the professional court.
Professional liability investigations are carried out by the district professional liability ombudsmen and the Supreme Ombudsman. The Ombudsman is obliged to initiate such proceedings if he or she has obtained reliable information about an offence of professional responsibility of a medical professional. Such information may come, inter alia, from the injured person, another nurse, midwife, doctor, the head of a medical entity, or its source may be the mass media.
The Ombudsman refuses to initiate proceedings if there are circumstances excluding the proceedings, e.g. the act has not been committed or there are no data sufficiently justifying a suspicion that it has been committed, the act does not constitute professional misconduct, the person has died, the social harmfulness of the act is negligible and then issues a decision on refusal to initiate an investigation.The Ombudsman, in conducting the proceedings, is obliged to be objective and to explain the case in detail. To this end, he may question the victim and other persons as witnesses, appoint and question experts or specialists, as well as take other evidence. In cases of urgency, in particular, when this could result in the obliteration of traces or evidence of professional misconduct, the ombudsman may question the doctor, nurse, midwife as an accused person, before issuing a decision to lay charges, if the conditions for such a decision exist. If the evidence gathered in the investigation indicates that a professional misconduct has been committed, the ombudsman shall issue a decision to charge the doctor, nurse, midwife, whereas if it did not provide grounds for drawing up a motion for punishment, the ombudsman shall issue a decision to discontinue the proceedings, without the necessity to acquaint the accused person with the evidence of the investigation. The investigation should be completed within 6 months from the date of obtaining information indicating that a professional misconduct may have been committed, a period that may be extended by the Chief Ombudsman for no longer than another 6 months.
When the evidence gathered in the course of the investigation confirms the validity of the allegations and constitutes a substantial basis for drawing up a motion for a penalty, the ombudsman shall notify the person accused and his/her defence counsel of the date of the final familiarisation with the investigation material, together with an instruction on the possibility of a prior review of the file. The accused person and his/her defence counsel must have at least 14 days to familiarise themselves with the evidence, this period to be counted from the date of service of the notice. Unexcused non-appearance of the accused person and his/her defence counsel does not stop further proceedings.
The ombudsman shall submit a request for punishment to the medical or nursing and midwifery court. Otherwise, and in the event that any of the obstacles to the procedural conduct of the proceedings arise during the course of the proceedings, the ombudsman shall issue a decision not to proceed with a request for punishment, but shall instead issue a decision to discontinue the investigation.
Both an order refusing to initiate an investigation as an order discontinuing an investigation can be appealed to the Supreme Ombudsman by the aggrieved person; in addition, other parties to the investigation can complain about an order discontinuing the investigation.
The parties to professional liability proceedings against doctors, nurses and midwives are the injured party, the accused person, i.e. the doctor, nurse or midwife, and the ombudsman for professional liability or his deputy. In the proceedings before the court, the ombudsman is the accuser, i.e. he supports the request for punishment. He or she also has the right to propose evidence and ask questions.
The aggrieved party in the course of professional liability proceedings is entitled to make requests for evidence, to appeal against the ombudsman's decisions to refuse and discontinue the proceedings, to appeal against the decision of the medical court, court of nurses and midwives, and to review the case file, not covered by professional secrecy.The medical court, court of nurses and midwives is obliged to seek a comprehensive examination of all relevant circumstances of the case. It may, ex officio, admit any evidence it deems necessary, summon and examine witnesses, experts and specialists.
The hearing before the medical court and the court for nurses and midwives shall be public. Exclusion of openness shall occur when openness could violate professional secrecy, cause a disturbance of the peace or public order, offend good morals, disclose circumstances important for the interest of the state and violate an important private interest. A request for exclusion from publicity may also be submitted by the victim.
The prerequisite for liability for professional misconduct, as in criminal liability, is that the doctor, nurse or midwife is found guilty.The medical court, the court of nurses and midwives may discontinue the proceedings, it may also pass a judgment acquitting the accused doctor, or the accused nurse or midwife, or it may pass a judgment imposing a penalty.
The professional court may impose, inter alia, the following penalties:1. restriction of the scope of activities in the practice of the profession for a period of six months to two years;2. suspension of the right to practice the profession for a period of one to five years;3. deprivation of the right to practice the profession.
The final sanction of suspension and deprivation of the right to practise the profession shall constitute grounds for termination of the employment contract without notice through the fault of the employee or the civil law contract under which the doctor, nurse, midwife practises the profession.
The ombudsman, the injured party and the accused doctor, the accused nurse, the accused midwife have the right to appeal against the decision of the district court within 14 days from the date of service of the decision with the statement of reasons to the Supreme Court. The Supreme Court may uphold, reverse or modify the decision of the district court. Decisions of the Supreme Court terminating professional liability proceedings shall be final upon publication. The grounds of such a decision shall be served on the parties together with a written statement of reasons within 2 months of its announcement. A cassation or reopening of the proceedings may be filed against a final decision, under the conditions and terms laid down.
The register of sanctioned nurses is maintained by the Supreme Medical Council and the Supreme Council of Nurses and Midwives. The register is open to persons who demonstrate a legal interest.
 Civil Code - Act of 23 April 1964, Journal of Laws No. 16, item 93, as amended; Civil Procedure Code - Act of 17 November 1964, Journal of Laws No. 43, item 296, as amended). M. Nestorowicz, Medical Law, 6th Edition p. 42. According to Article 6 of the Civil Code: "The burden of proving a fact rests on the person who derives legal consequences from that fact." Judgment of 15 October 1997, III CKN 226/97. Judgment of the Supreme Court of 7 January 1966, I CR 365/65, OSPiKA 12/1966, item 278.For a broad concept of damage cf. Z. Radwański, A. Olejniczak, Obligations - general part, 10th edition, Warsaw 2012 p.90 - 92. Supreme Court decision of 10 December 1952, C 584/52, PiP 1953, no. 7-8, p.366. Supreme Court decision of 5 July 1967, OSNCP 1968, no. 2, item 26; also Supreme Court decision of 17 June 1969, OSPiKA 1969, no. 7-8, item 155. M. Nestorowicz, Medical Law, 6th edition, op.cit. p. 57. Ruling of the Supreme Court of 15 September 1999, III CKN 339/98, OSP 4/2000, item 66. Filar M., Krześ S., Marszałkowska-Krześ E., Zaborowski P., Liability of doctors and health care facilities, Warsaw 2004, p. 46. Filar M., Krześ S., Marszałkowska-Krześ E., Zaborowski P., Odpowiedzialność lekarzy i zakładów opieki zdrowotnej, Warsaw 2004, p. 47. Z. Banaszczy, M. Barzycka-Banaszczyk, M. Boratyńska, P. Konieczniak, E .Zielińska, Odpowiedzialność lekarza- jej rodzaje i podstaw (w:) Prawo Medyczne, pod.r ed. L.Kubicki, Wrocław 2003 r, p. 161 et seq. The wronged party is a natural person, a legal person or an organisational unit without legal personality, whose legal good has been directly violated or endangered by professional misconduct (art. 40 para. 1 of the A.s.p.p.).