State hospitals and other public health institutions discharge a public function by delivering health services to broad sections of society. Notwithstanding the effort devoted to conducting treatment and care, interventions carried out in public institutions, like every medical procedure, carry a certain risk of error. Where that risk materialises and the patient suffers physical or psychological harm, the question of legal liability arises.
Article 129 of the Constitution places the burden of compensation for harm caused by public officials in the performance of their duties directly upon the administration. The consequence of this provision is clear: as regards medical errors in state hospitals, an action may be directed only against the administration, and no action for damages may be brought directly against the physician or the health personnel. Accordingly, claims arising from faulty interventions in public health institutions are asserted against the administration before the administrative courts in the form of a full remedy action and are resolved within that branch of the judiciary.
In this note we examine which rights patients enjoy in cases of faulty medical intervention occurring in public hospitals, how the compensation process advances, and the matters that must not be overlooked in the course of it.
The Concept of Faulty Medical Practice
What Does Malpractice Mean?
The word malpractice, of Latin origin, is used to denote “bad practice” and, in the field of medicine, describes the harm arising from a faulty application. The general definition of the concept is as follows: harm suffered by the patient as a result of the faulty conduct of a member of a health profession or of that person’s neglect of his or her duty. Wrongly applied treatment and medical negligence are gathered under this heading; both situations are capable of giving rise to legal liability.
The Forms in Which Malpractice Appears
Malpractice may emerge in different forms during the provision of health services. In practice these forms are gathered into two main groups.
The first group consists of faults in the medical intervention. These arise from incorrect applications made directly at the diagnostic or treatment stage; a mistaken diagnosis, treatment that falls short, an unnecessary surgical procedure, or the choice of a method of treatment unsuited to the case are examples of this group.
The second group consists of errors stemming from the organisation of the health institution. Shortcomings in the management and operation of the institution make up this heading; an insufficient number of staff, the absence of the necessary medical equipment, non-compliance with hygiene rules or disruptions in the running of the institution all point to errors of this kind.
The Distinction Between Malpractice and Complication
The distinction that is decisive in assessing adverse outcomes arising in health care is the difference between faulty practice and complication. Although the two concepts are frequently used interchangeably in everyday language, they have different content in law and in medicine.
Malpractice is where a health worker, owing to insufficient knowledge, inexperience or carelessness, administers treatment or carries out a procedure contrary to medical standards and the patient is thereby harmed. In such a case the health worker or the institution concerned may face legal liability.
A complication, by contrast, is an unforeseeable and unavoidable adverse outcome that emerges during treatment or an intervention carried out in due form; it stems from the patient’s existing state of health or from the nature of the intervention. Since it may occur without any fault or negligence on the part of the health worker, it does not give rise to legal liability.
The importance of this distinction lies in its determining whether an adverse event occurring in the course of treatment gives rise to liability. Whereas malpractice rests on the fault or negligence of the health worker, a complication is assessed as being among the natural risks of the intervention.
The Legal Nature of the Relationship Between the Public Health Institution, the Physician and the Patient
The Relationship Between the Public Hospital and the Patient
Health care is among the fundamental duties of the State and falls within the category of administrative public services governed by the rules of public law. Directly connected with the right to a healthy life, one of the individual’s most basic rights, this service is secured by Article 56 of the Constitution, which sets out the State’s obligation in this field in express terms. Accordingly, public hospitals, together with all the units and personnel serving in them, are obliged to conduct the service they provide in a manner consistent with the standards prescribed by medical science.
On this picture, benefiting from health services is a constitutional right from the individual’s standpoint and a duty that must be discharged from the State’s standpoint.
The Relationship Between the Patient and the Physician
The bond between physicians serving in public hospitals and patients does not, unlike that in private health institutions, rest on a contractual relationship. Since a physician working in the public sector provides a public service on behalf of the State, no contract is formed directly with the patient. For that reason, where the physician causes harm to the patient in the course of duty, the party answerable for the liability is not the physician but the public institution to which he or she is attached. The relationship is dealt with within the framework of agency without authority and the rules of administrative law; disputes arising from it are accordingly heard before the administrative courts.
The Legal Liability of the Administration
Public institutions are held liable in law where individuals suffer harm in the course of the services they conduct. Acting within the constitutional order as an extension of the State, these institutions are liable for harm arising from deficiencies or errors in the services they provide. That liability also extends to making good harm occurring in the course of services of a public character such as health care.
The arising of the administration’s liability based on service fault depends on a number of conditions being satisfied together:
- The character of a public service: the activity in question must be regarded as a public service; the health service provided in state hospitals is of that character.
- Service fault: there must be a practice in the provision of the service that is inconsistent with the time, the place and the concrete circumstances of the case. Defective performance of the service is characterised as a fault just as much as complete failure to perform it.
- Harm: the person must have suffered a physical, psychological or financial loss on account of the service provided.
- Adequate causal link: a direct connection must be established between the harm arising and the service fault; it must be possible to demonstrate that the harm stemmed from the fault.
Liability Based on Service Fault
Public health institutions are State bodies providing services in order to meet the needs of society. Every deficiency or error emerging in the provision of that service is characterised as a service fault and is capable of giving rise to the institution’s liability. A service fault arises where the public service is not performed as it should be and, where the patient suffers harm, opens the way to claims for damages.
In state hospitals the source of this liability most often lies in disruptions in the provision of the service, faulty medical practice or shortcomings in the giving of information. Errors at the diagnostic or treatment stage, the giving of incomplete information to the patient, or the failure to carry out the necessary intervention in good time are assessed within the scope of public hospitals’ liability for service fault. In such cases the patient may bring a full remedy action against the administration and seek to have the harm made good.
Claims for damages based on service fault are examined before the administrative courts as full remedy actions. In making their assessment, the administrative courts consider together the administration’s fault, the nature of the harm and the adequate causal link between harm and fault.
Liability Arising from Deficiencies in the Running of the Institution
Deficiencies in the establishment and running of the service in public hospitals may adversely affect the patient’s health. These deficiencies may be gathered under three manifestations.
Poor functioning of the service covers cases where the health service is not conducted in accordance with the legislation, where the administration acts without due care, or where interventions are not carried out effectively, and it constitutes a service fault. Late functioning of the service is the failure to provide the service within the expected period; because it adversely affects the course of treatment, it imposes liability on the administration. Complete failure of the service to function is where the public hospital gives no response at all to the patient’s request for health care, and it may lead to serious detriment.
Liability Arising from Medical Malpractice
One of the principal elements giving rise to the liability of public health institutions is medical malpractice; the administration may be held liable for harm stemming from such errors. The principal types of error encountered in practice are as follows:
- Mistaken diagnosis: a faulty diagnosis may adversely affect the course of treatment and thereby cause harm to the patient.
- Faulty choice of treatment method: where the method applied is the wrong one, it may prevent recovery and cause harm.
- Exceeding the limits of competence and expertise: a physician carrying out interventions falling outside his or her own field of expertise may cause harm to the patient and may be regarded as committing a service fault.
- Breach of the duty to inform and exceeding the consent given: the failure to inform the patient sufficiently before the intervention, or to obtain his or her consent, gives rise to liability.
- Failure to show the requisite diligence: a failure to assess the patient’s condition adequately, or negligent conduct, puts the patient’s health at risk.
- Breach of the duty of confidentiality: the disclosure of private information belonging to the patient without consent gives rise to the liability of the physician and of the institution to which he or she is attached.
The liability of public health institutions for service fault performs a decisive function in protecting patient safety and patient rights. The conducting of health services with diligence and without error is the precondition for individuals’ fundamental health rights remaining secure.
The Strict Liability of Public Health Institutions
In respect of harm arising during the provision of health services, the administration may also be held liable under the principle of strict liability. This principle denotes the obligation to make good harm emerging as the direct consequence of the public service conducted. Neither intent nor negligence on the part of the administration is required; it applies to special and extraordinary harm arising purely because of the conduct of the service. Strict liability rests on two basic principles.
The risk (danger) principle requires that special and extraordinary harm arising in the course of a public service be compensated as against the general benefit the service provides. For example, where a patient contracts an infection during an operation or treatment in hospital, it falls to the administration to make good the harm even if the hospital cannot be held obliged to guarantee sanitary conditions.
The principle of equality before public burdens, for its part, is intended to ensure that harm arising in the course of services provided for the public benefit is distributed equitably among individuals. Thus, where a person suffers harm during a vaccination programme conducted by the administration in order to protect public health, the harm, being the direct consequence of a service provided for the public benefit, is made good by the administration. In that situation the person vaccinated may apply to have the harm made good even where the administration is not at fault in any respect.
The arising of strict liability is subject to two conditions. The first is the causal link: it must be possible to establish a direct connection between the health service provided and the harm arising. The second is that the harm be of a special and extraordinary character; the harm suffered by the person must go beyond the general burdens of the health service borne by everyone.
Where these conditions are satisfied, redress for harm suffered in public health institutions may be sought through the administrative courts on the basis of strict liability. We take the view that harm suffered by a patient during medical interventions carried out for the public benefit must be compensated under strict liability even where there is no intent or negligence on the part of the administration.
Grounds Reducing or Removing the Liability of the Administration
There are a number of situations that mitigate the administration’s obligation or remove it altogether. The principal grounds are as follows:
- Force majeure: events developing beyond the administration’s control and impossible to prevent fall within this scope. In natural disasters such as earthquakes, floods and fires, and in epidemics, the administration’s liability may be limited or removed entirely on account of the unpreventable character of the harm.
- Fortuitous event: this denotes extraordinary and unavoidable situations that are difficult to foresee in advance. Where such an event has occurred notwithstanding that the administration showed the requisite diligence, liability may be mitigated or removed; the emergence of a very rare complication during an intervention is an example of this.
- Fault of a third party: where the harm has arisen from the fault of a person outside the administration or the health institution (a relative of the patient, for instance), the administration’s liability may be reduced or removed entirely. Where the influence of a third party is decisive in an incident occurring during the provision of the service, the assessment is made accordingly.
- Fault of the person undergoing the intervention: where the patient has suffered harm on account of his or her own faulty conduct during the process, the administration’s liability may be reduced or removed. Failure to follow the physician’s advice, behaving in a manner that obstructs treatment, or neglecting the process are treated as fault on the patient’s part and may lead to a reduction in the administration’s liability.
Actions That May Be Brought Against Public Health Institutions
Full Remedy Action Claiming Pecuniary Damages
Where a faulty intervention in a public health institution has caused the patient’s death or physical harm, pecuniary damages may be sought by bringing a full remedy action before the administrative courts. The purpose of this action is to make good the material losses and direct economic harm suffered by the patient or the patient’s relatives. The claim is founded on the harm having arisen from the administration’s service fault or from its strict liability.
Where the patient has lost his or her life, the following heads of claim may be advanced:
- Funeral and burial expenses: all expenditure incurred for the funeral arrangements of the deceased patient.
- Treatment expenses before death: health expenditure incurred during the course of treatment before death occurred, such as the cost of medication and hospital bed charges.
- Losses arising from inability to work: the loss of income suffered by the patient during the period in which he or she was unable to work.
- Damages for loss of financial support: damages that may be advanced by relatives deprived of the support of the deceased.
Where the patient has suffered physical harm, the heads of claim that may be advanced are as follows:
- Treatment expenses: all health expenditure incurred by the injured patient throughout the course of treatment.
- Loss of earning capacity: the loss of income of a patient who has lost his or her capacity to work as a result of the medical error.
- Impairment of economic future: economic losses arising in the future on account of an inability to continue in one’s profession or difficulty in finding work.
The burden falling on the claimant in these actions is to demonstrate that the harm is directly connected with the faulty intervention and to establish the adequate causal link between the two. The court, examining the relationship between the harm and the performance of the public service, may award damages where the conditions are satisfied.
Full Remedy Action Claiming Non-Pecuniary Damages
Non-pecuniary harm caused by a faulty medical intervention may likewise be claimed by way of a full remedy action. The purpose of these actions is to make good, to a certain extent, the distress, grief and non-pecuniary loss experienced by the patient or the patient’s relatives. For the purposes of a claim for non-pecuniary damages it is sufficient that the patient’s state of health has been adversely affected; the suffering of physical or psychological harm gives rise to the claim.
Where the intervention has resulted in the patient’s death, relatives may also seek non-pecuniary damages. In such cases the pain and grief felt by the family and those close to the deceased are assessed within the scope of non-pecuniary damages. The court determines an appropriate sum having regard to the gravity of the incident and the emotional devastation experienced by the victims.
The following may be given as examples of situations capable of founding a claim for non-pecuniary damages: the emergence of a permanent condition on account of a mistaken diagnosis or treatment and a lasting decline in the patient’s quality of life; serious harm to health on account of a failure to show the requisite care and diligence during the intervention; and, where a faulty intervention results in death, the emotional pain experienced by relatives in the face of that loss.
In determining the amount of damages, the nature of the incident and the extent and effect of the non-pecuniary loss are assessed together; the sum awarded likewise varies according to the degree of the loss.
Procedure in Full Remedy Actions
The Mandatory Administrative Application
Before an action is brought before the administrative courts, the person whose right has been infringed must apply to the administration within certain time limits. The period prescribed for this application is 1 year from the date on which the incident became known and, in any event, 5 years from the date of the incident. In the application, performance of the right infringed is requested. If the claim is rejected in whole or in part, the right to bring an action arises within 60 days of the rejection. If the administration gives no reply at all within 30 days, an action may be brought upon the expiry of that period. Where the action is mistakenly brought before the civil courts, a decision of rejection on grounds of jurisdiction is rendered; in that event no fresh application to the administration is required.
The Parties to the Action
As to the claimant: where the patient harmed as a result of the intervention is alive, the right of action belongs to that patient directly. Where the patient has lost his or her life, that right passes to the relatives, who thereby acquire the status of parties to the proceedings.
As to the respondent: full remedy actions arising from a faulty medical intervention are directed solely against the public administration concerned. Where the error occurred in a state hospital, the action must be brought against the Ministry of Health, since state hospitals have no separate legal personality. The liability regime applicable to private health institutions is dealt with separately below.
Proving the Faulty Medical Intervention
In full remedy actions the patient or the patient’s relatives bear the burden of proving that there was fault in the health service provided by the administration, that the service was not performed as it should have been, or that it was not performed at all. The burden on the administration is to demonstrate that the service was provided in accordance with the requisite standards. At the evidential stage, expert reports by court-appointed experts and the medical records play the principal role in determining whether the intervention was faulty.
The Importance of Complying with Time Limits
In actions to be brought in respect of faulty medical interventions, compliance with the statute of limitations and with the time limits for bringing proceedings is decisive. Where the application made to the administration has been rejected in whole or in part, the period for bringing an action is 60 days from the service of the decision of rejection or from the expiry of the 30-day period for reply.
The Court with Subject-Matter and Territorial Jurisdiction
In full remedy actions concerning faulty medical interventions in state hospitals, subject-matter jurisdiction lies with the administrative courts. As to territorial jurisdiction, the court of the place where the health service was rendered has jurisdiction.
Differences in Liability Between State, University and Private Hospitals
As regards legal liability arising from medical malpractice, there are marked distinctions between private health institutions and public bodies. The status of the institution in which the physician serves changes both the party answerable for the liability and the procedure of the proceedings.
As to the party against whom the action for damages is brought:
- Private health institutions: physicians and institutions operating in the private sector are as a rule subject to the provisions of private law. For that reason, in respect of harm arising from medical errors occurring in private hospitals, the patient or the patient’s relatives may bring an action directly against the private hospital and the physician; the dispute is resolved before the civil courts within the framework of the provisions of private law.
- Public health institutions: liability arising from the errors of physicians serving in public hospitals belongs directly to the State. The patient or the patient’s relatives bring their action for damages not against the physician or the hospital but against the Ministry of Health. Since public bodies are assessed within the scope of administrative law, these actions are conducted before the administrative courts as full remedy actions.
- University hospitals: in respect of errors occurring in university hospitals, the action is directed not against the physician or the hospital but against the rectorate of the university to which the hospital is attached. As university hospitals are likewise regarded as public bodies, the proceedings are conducted before the administrative courts in the form of a full remedy action.
As to recovery of the damages and recourse:
- Private health institutions: in respect of harm caused by a physician serving in a private hospital, the patient or the patient’s relatives may seek pecuniary and non-pecuniary damages in the action they bring against the hospital or the physician. Where the error stems from the physician’s personal fault, the institution may recover from the physician concerned, by way of recourse, the damages it has been obliged to pay.
- Public health institutions: as regards public hospitals and universities, the damages are paid to the injured party by the administration. However, where it is established that the error arose from the physician’s personal negligence or fault, the State may recover the sum it has paid from the physician concerned by way of recourse. The personal character of the fault in that event makes it possible to reclaim from the physician the sum imposed on the administration.
The details of the matter according to the type of institution are examined in separate notes dealing with liability in damages for faulty medical interventions carried out in private hospitals and in university hospitals.
Independent Legal Assessment
In compensation proceedings conducted against public health institutions, the fate of a file is most often determined by procedure before any argument on the merits is reached. A failure to apply to the administration before bringing proceedings, missing the applicable time limits, or taking the action to the wrong branch of the judiciary may result in even a substantively well-founded claim being disposed of without examination.
On the merits, the focus of the argument almost invariably lies on the boundary between service fault and complication. In drawing that boundary, the completeness of the medical records, the content of the informed consent documents and the scope of the expert examination are decisive. In a concrete file the following headings are of particular priority:
- Documenting the date on which the harm became known and calculating the one-year application period by reference to that date
- Framing the content of the application made to the administration so that it covers the claims of the action to be brought subsequently
- Obtaining the patient file, the test results and the consent documents without delay
- Determining at the outset whether the incident is to be assessed within the scope of service fault or of strict liability
- Correctly identifying the respondent administration, having regard to the distinction between the state hospital, the university hospital and the private institution
- Setting out the heads of pecuniary and non-pecuniary damages separately and in a calculable form in the pleadings
Independent Legal provides advisory services and conducts litigation in the field of health law throughout the process, from the administrative application stage to the conduct of the full remedy action.