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We wish they were infallible, but they are only human. Unlike a sapper, they can make mistakes several times. In the past, the usual “complications have occurred” was enough, today the awareness of patients’ rights is much greater, and after these words there are lawsuits.
- More and more Poles are choosing to pursue their rights in court after suffering from medical malpractice. We expect from medical staff not only professional health services in accordance with current medical knowledge, but also respect for the rights of the patient.
- Most cases concern perinatal errors. – Unfortunately, their stories repeat themselves often and have a tragic end. Delayed decision on caesarean section, severe hypoxia, cerebral palsy, family drama – says lawyer Małgorzata Hudziak
- Who is really responsible for the treatment error – the doctor, hospital, or maybe the insurer?
- Do you want to live longer? Make a simple test and find out how!
- You can find more such stories on the TvoiLokony home page
Medical errors in Polish hospitals and clinics
«The delivery was prolonged, after a dozen or so hours the doctor gave me oxytocin instead of a caesarean section, and then he lay down on my stomach squeezed the baby with his elbow. I thought I was going to die. The little one was born with severe perinatal hypoxia, which resulted in cerebral palsy with quadriplegia ».
«Mom was literally dying before our eyes. The results continued to worsen until sepsis developed and became a tragedy. Mom fell asleep and never woke up again. She was only 53 years old. To this day, I cannot forgive myself for not taking her to another hospital. Maybe everything would have turned out differently. Today, after expert opinion, I already know that there were negligence during the gall bladder excision. Now we are waiting for a just sentence. »
«The doctor said it would be beautiful. Today I am after the third revision of breast augmentation surgery and I still look terrible. Terrible scars. Clear breast asymmetry. Other doctors refused to ‘repair’ someone else. I was looking for help for a long time, luckily it worked and I am waiting for another one. Now I am still treating myself for depression. I was ashamed to ask the law firm for help and talk about my problem for a long time. It’s not like a man dies, I thought. Today I know that you cannot accept the lack of diligence in treatment, even if it is aesthetic, and you have to fight for justice. »
- At the gynecologist she heard: «What do you need your baby for? You can’t do it »
The patient says: I check
The medical law firm Lazer & Hudziak receives a dozen or so messages a day. The victims themselves or their relatives write. There are at least a few reasons why the patient does not break with his thoughts anymore and goes to court – firstly, our awareness has increased. We expect from medical personnel not only professional health services consistent with the current medical knowledge, but also respect for patient’s rights.
Secondly, as Małgorzata Hudziak emphasizes, the amount of redress awarded by Polish courts is much greater:
– These are no longer symbolic amounts, but compensation of up to a million zlotys. – The attitude of the defendants is also different. Hospitals and insurers make settlements much more often. They negotiate amounts and save on interest – adds Joanna Lazer.
There is one more reason: in response to market needs, the number of law firms that declare proficiency in medical law has increased. There is no shortage of potential “mines” – apart from professionals who can be counted on the fingers of one hand, “compensation hunters”, ie compensation offices, sharpen their teeth at clients. The “beaters” they pay for potential customers fish by the hospital bed and persuade them to sign unfavorable contracts, which may cost unaware patients the loss of even more than 50 percent. compensation.
– It’s not worth the risk – the stakes are very high. It is not only about money, which for many sick people is “to be or not to be”, but also about justice. By choosing a lawyer who, apart from reliable legal knowledge, is also familiar with medical issues, we are sure that he will take care of us and help in obtaining fair compensation. The greater the law firm’s experience in medical law, the greater the patient’s chances of success – comments lawyer Lazer.
What can you buy with it?
Contrary to popular belief, the patient’s motivation is not revenge for the damage he has suffered, but a chance for a dignified life.
– We are talking about heavily injured people who often require the help of third parties. A lot of mothers of perinatal victims come to our office. Unfortunately, their stories repeat themselves often and have a tragic end. Late decision on caesarean section, severe hypoxia, cerebral palsy, family drama. In Poland, the nursing benefit for a parent who resigns from employment is PLN 1583 per month. What can you buy with it? Medicines and care products? What about medical visits, rehabilitation, equipment? The cost of one rehabilitation stay is about 5-8 thousand, a severely injured child needs at least four a year. What is left for them – credit, online fundraising? – enumerates the attorney Małgorzata Hudziak.
In the event of the patient’s death, the main motivator for relatives is not to find the guilty parties, but to establish what really happened. Especially when the patient dies at the ED, after standard surgery or a few days after leaving the hospital.
– If the medical documentation does not allow us to find a cause-effect relationship, and the chances of winning are negligible, we tell our clients about it directly. We don’t go to court with every case. We carefully analyze each case to avoid disappointing the client at the end of the procedure. Sometimes, unfortunately, patients are unlucky, misfortunes happen, even despite proper treatment. Otherwise, it is worth fighting for justice – punishing an incompetent doctor or stigmatizing improper organization of a hospital may save his other patients in the future, and perhaps even save their lives – adds patron Lazer.
- «The gynecologist looked at me and then advised me to make an appointment with a psychiatrist»
Has a risk
Americans have long looked at the structure of compensation for medical errors, trying to identify risk factors for their occurrence. An analysis of 66 claims paid by 426 doctors over the years 54-099 was published in The New England Journal of Medicine in 2005.
Almost half of the compensation was paid by internists (15%), obstetricians-gynecologists (13%), general surgeons (12%) and family doctors (11%). The risk of making a mistake was relatively low in paediatrics and psychiatry.
When it comes to age – compared to the group approaching retirement (55-64 years old), young doctors (25-34 years old) were much less likely to be held accountable. The high-risk group also included doctors who committed a medical error in the past – each subsequent payment of compensation increased the likelihood of another well-founded lawsuit.
The results of the American analysis correspond with the data of medical boards and with trends from developed countries.
– There is a reason why the term “surgical precision” is used in the colloquial language – any doctor’s error may result in loss of health or even life of the patient. Unfortunately, surgeons also make mistakes, both as a result of failure to exercise due diligence and lack of appropriate knowledge or skills. It is necessary to distinguish the issue of complications from those failures that result from careless treatment. In the last two years, the number of clients who ask us for help after an unsuccessful plastic surgery or after an unsatisfactory treatment in the field of aesthetic medicine has significantly increased. Often the reason for patients’ dissatisfaction is improper communication with the doctor – comments advocate Lazer.
In the doctrine and case literature, several types of medical errors are distinguished: diagnostic, therapeutic, technical, organizational and executive. In the case of surgeons and other treatment professionals, we most often deal with an operational error, which is a special type of therapeutic error.
When it comes to leaving a foreign body in the operating field, which often happens, according to the jurisprudence, it is not treated as a medical malpractice, and failure to comply with the duty of care and caution for every human being, not only a professional, justifies the civil liability of the medical entity. Failure to observe the rules of asepsis when performing procedures is also classified in the same way: the use of non-sterile needles and dressings, or the operation without washing hands.
Due to the temporary and non-life threatening extent of the patient’s injury, the amounts awarded by the courts in this case are not as high as in the case of medical errors.
- The greatest sins of Polish delivery workers
Postpartum traumas
We have written about the hell of Polish delivery rooms many times. Lack of empathy and intimacy, limited access to anesthesia or non-compliance with the standards of perinatal care reappear in the stories of many mothers.
Drastic flashbacks fade with the birth of a healthy baby. But what if the baby is born sick or stillborn?
When the parents recover from the first shock, they begin to wonder why. They look for answers on the Internet and, for example, for the causes of child asphyxia. They are also looking for a description of their rights in this tragic situation and this is how they find us. For four years we have been running a blog only about perinatal errors: bladprzyporodzie.pl. – says attorney Joanna Lazer.
– Many parents of perinatal children come to our office. The most common errors in childbirth are: lack of constant CTG supervision (cardiotocographic examination) over the delivery when it was needed, failure to perform a caesarean section, despite medical indications, or delaying it. Their effects can be tragic not only for the child. It happens that after giving birth, the mother has a fourth degree perineal rupture, a cut intestine or a bladder. Our experience shows, however, that women more often decide to go to the court for a child and heal their own postpartum traumas alone – adds Hudziak.
A perinatal error is not always a gynecologist’s error, it is often the anesthesiologist or midwife who will not follow the adopted procedures.
- The worst texts by gynecologists that Polish women hear in their offices
So far, the highest compensation for a childbirth error in Poland has amounted to PLN 1,2 million. Compensation in the form of compensation, damages and pensions was awarded to a girl who, as a result of failure to perform a caesarean section, suffered severe damage to her entire body and brain. In a precedent-setting judgment, the Supreme Court also awarded compensation to parents, arguing that the hospital violated their right to a normal and peaceful family life.
– This is not an inadequate amount – we must remember that the compensation is paid once and, in the long run, the damages in millions will not be enough for a lifetime. In one of our childbirth cases, the court awarded a child almost 12. PLN annuity monthly for the duration of the trial. Annually, it already gives almost 150 thousand. zlotys. This means that despite the ongoing process, the child already has funds for treatment and rehabilitation. This is the first tangible effect of our actions, which gives us great satisfaction. The awareness that we help in this type of matters makes the work meaningful – says lawyer Lazer.
List of defendants
Who is responsible for medical errors – doctor, hospital, or maybe the insurer? The answer to this question is not clear.
– The liability depends on the form of employment of the doctor or other member of the medical staff who committed the error. If the doctor is employed in the hospital on the basis of an employment contract, his liability will be exclusively employee liability towards the hospital. In other words, in relation to the patient, he will not be responsible for his error “personally”, and the employer, ie the hospital or clinic, will be responsible for his mistakes. The situation is different when the doctor works on the so-called “Contract”. In this case, he will be liable for the damage he caused financially together with the hospital (joint and several liability). This means that he will no longer be only a witness in the trial, but a party to it and, in order to avoid responsibility, he will have to defend himself against the patient’s accusations, explains Hudziak.
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In the context of liability for a medical error, apart from the hospital and the doctor, there is also a third entity – the insurer.
– Both the hospital and the doctor must have valid liability insurance. This means that the insurer, who becomes one of the defendants, will also be financially responsible for their mistakes. This is due to the concluded liability insurance contract for malpractice. If the patient wins, the insurer will have to cover the amount awarded with the judgment up to the guaranteed sum, i.e. the insurance amount for which the hospital is insured. Due to the fact that the hospital will always be responsible for a medical error, it will also be appropriate to sue the hospital’s insurer as well. In a situation where the doctor works on the so-called contract, you should also sue the insurer of the specific doctor.
– Patients are often terrified at the beginning that so many entities will have to sue in a medical error. Completely wrong. Besides, the client only needs to go to court once. We take care of the rest. That’s what we are for. Basically, at the beginning we develop a strategy of action in a specific case. Sometimes a better strategy is to sue all entities, other times not necessarily. It all depends on the circumstances of the specific case. It is not that the more defendants, the greater the chances of receiving compensation or compensation in a fair amount. The most important are arguments and their foundation in medical records and testimonies of witnesses. You have to keep a close eye on everything. Medical malpractice cases are very labor-intensive, but the effect is rewarding with a difficult one – sums up lawyer Lazer.
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