Medical establishments (hospitals) bear civil liability for damages caused to the patient, and in the event of his death to his relatives on the basis of fault. This liability may be tort (civil liability related to the commission of a tort, which leads to the creation of a civil obligation relationship) or contractual (civil liability resulting from non-performance or improper performance of the obligation) in the event of concluding a contract with a patient.
Injury to the patient ( infections , bodily injury, he alth disorder, physical suffering and moral harm) being non-performance or improper performance of an obligation is always a prohibited act, hence tort and contractual liability .
Infection in hospital - who is responsible?
Doctors running their own medical practices, or acting in the form of a partnership, general partnership or partnership, as a group medical practice, bearliability for damage caused to patientsin accordance with the provisions of the Code civil. If, on the other hand, they are employed in a medical institution (hospital) on the basis of an employment contract, they are protected by the Labor Code as subordinates. In the event of damage to patients, they bear only employee liability, limited to the amount of three months' remuneration for work, unless they caused the damage intentionally, then their liability for the damage is total. On the other hand,the civil liability is borne by the medical facility .
On the other hand, if a doctor is employed in a medical entity (hospital) on the basis of a contract for the provision of services, performs them as an entrepreneur, then civil liability for damage caused while providing services is jointly and severally borne by the medical entity (hospital) and the party receiving the order (doctor ). If a doctor admits his "private" patients in a public medical institution, the institution is not passively legitimized in compensation proceedings. Medical establishments and doctors may also be responsible for violating the patient's rights (e.g. for acting without the patient's "informed" consent, disclosure of medical confidentiality or data contained in medical records).the patient does not require proof of the damage, and the pecuniary compensation pursuant to Art. 4 of the Act on Patient Rights in connection with joke. 448 of the Civil Code can be awarded for the mere fact of a breach, irrespective of whether there is consequent damage.
Compensation in the event of nosocomial infection
Pursuant to the Act of April 28, 2011 amending the Act on Patient Rights and Patient's Rights Ombudsman and the Act on Compulsory Insurance, Insurance Guarantee Fund and the Polish Office of Motor Insurers, patient infection with a biological pathogen, bodily injury or he alth disorder the patient or the death of a patient resulting from inconsistent with current medical knowledge:
1) diagnosis, if it caused inappropriate treatment or delayed proper treatment, contributing to the development of the disease,
2) treatment, including surgery,
3) use of a medicinal product or a medical device.
Compensation in the event of infection, bodily injury or impairment of the patient's he alth in the amount of up to PLN 100,000, and in the event of the patient's death to the heirs in the amount of up to PLN 300,000 is awarded by the provincial commission for adjudicating on medical events, and is paid by the insurer or entity Therapeutic treatment facility running the hospital in the event of exhausting the guarantee amount of the insurance or failure to conclude an insurance contract. The entity accepting the compensation proposal submits a declaration of waiver of all claims in the scope of damages that have become known up to the date of submitting the claim.
The above compensation system does not apply to damages related to the operation of a doctor without the consent of the patient, exceeding the scope of the consent or against the will of the patient, and when the doctor acts in accordance with the art of diagnosis, therapy or use of a medical product or device. Compensation of this type of damage, the patient will be able to pursue only in court.
It is also worth noting that the legal representatives of a minor may not waive the child's claims, which are not their own claims, as to the pension, which this compensation system does not provide. Such a waiver should be considered null and void. After reaching the age of majority, the minor may bring claims for damages to the court.
Legal basis:
Civil Code Act (Journal of Laws of 1964 No. 16 item 93 as amended)
Regulation of the Minister of He alth of February 10, 2012 on the detailed scope and conditions for determining the amount of the benefit in the event of a medical event, Journal of Laws No. of 2012, item 207)
Act of April 28, 2011 amending the Act on Patients' Rights and the Patient's Rights Ombudsman and the Act on Insuranceobligatory, the Insurance Guarantee Fund and the Polish Office of Motor Insurers, (Journal of Laws No. 113, item 660).