I have a question about medical misdiagnosis. When am I en titled to compensation from a doctor if he or she is wrong about my illness?
Compensation may be due to the patient only if he proves medical malpractice. The image of a medical error in legal literature and jurisprudence includes two premises: 1) fault regarding medical technique (doctor's ignorance, carelessness in proceedings, carelessness, awkwardness, inattention), 2) fault not related to medical technique (violation of the patient's right to information, failure to notify the risks and consequences of the procedure, performing the procedure without the patient's consent, lack of the necessary postoperative supervision, abandoning the patient, undertaking the procedure with too high a risk compared to the intended benefits, performing procedures that are obviously unnecessary, carrying out a research experiment posing a risk to the patient's he alth, lack of appropriate preliminary tests, resulting in a faulty diagnosis, etc.). The doctor can be held responsible only in the event of guilt, he cannot be responsible for the lack of results, for the risk of treatment, if the patient has consented to the treatment, although he should do everything to achieve the intended result. The fault arises when the doctor can be accused of both objective and subjective inappropriate conduct. The concept of fault consists of two elements: objective (violation of applicable laws or rules resulting from the principles of medical knowledge, experience and professional deontology) and subjective (negligence, failure to exercise due diligence, intentional act or omission). Both of these elements must appear together. The physician will also be blamed for depriving the patient of a chance to cure or survive as a result of, for example, lack of due diligence in the procedure, diagnostic error in the absence of knowledge or necessary preliminary tests, lack of adequate information on the risks and consequences of surgery or alternative treatment methods, or faulty procedures. Legal basis: Civil Code Act (Journal of Laws of 1964 No. 16 item 93, as amended) Act on medical activity (Journal of Laws of 2011 No. 112 item 654 as amended)
Remember that our expert's answer is informative and will not replace a visit to the doctor.
Przemysław GogojewiczIndependent legal expert specializing in medical matters.
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