A medical treatment is intended to resolve or reduce complaints. Still, things sometimes go wrong. A wrong diagnosis, an error during surgery or insufficient aftercare can lead to serious injury. In such situations the question often arises whether you are entitled to compensation for a medical error.
In this article we explain in detail when there is a medical error, who can be held liable and which damage you can claim. You will also read which steps you must take to safeguard your rights.
What is a medical error?
A medical error occurs when a healthcare provider does not act as can be expected of a reasonably competent and reasonably acting colleague. It is therefore not every disappointing result, but conduct that deviates from the professional standard.
Examples of medical errors include:
- an incorrect or delayed diagnosis;
- a surgical error;
- incorrect or excessive medication dosing;
- insufficient monitoring or aftercare;
- failure to inform about the risks of a treatment.
When are you entitled to compensation?
You are entitled to compensation for a medical error when three conditions are met:
- there is a medical error;
- you have suffered damage;
- there is a causal link between the error and the damage.
If one of these elements is missing, liability is often disputed. That is precisely why a careful legal assessment is essential.
Who is liable for a medical error?
In the case of a medical error, not only the physician can be held liable, but also the hospital or care institution. In many cases the care institution is addressed because it is responsible for the actions of its employees.
In addition, healthcare providers are almost always insured for medical liability. Compensation is therefore usually paid out by the insurer.
Medical error or complication?
Insurers regularly argue that a complication occurred rather than an error. The distinction is important.
A complication is a known risk of a treatment that can occur even with careful practice. A medical error, by contrast, could have been avoided by correct conduct.
The question whether there is an error or a complication is often answered on the basis of medical guidelines and expert investigation.
Evidence in medical liability cases
Evidence plays a central role in compensation claims for medical errors. You must make it plausible that the healthcare provider acted negligently.
Important pieces of evidence are:
- the medical file;
- guidelines and protocols;
- statements from medical experts;
- the course of complaints before and after the treatment.
Often an independent medical expert is engaged to assess whether the healthcare provider remained within the professional standard.
The causal link in medical errors
In addition to the error, it must also be demonstrated that your damage is the result of that error. That is often the most difficult part of a medical liability case.
The core question is: would the damage have occurred without the medical error?
If the answer is no, in principle you are entitled to compensation.
What damage can you claim?
When liability is established, you can claim various categories of damage.
Material damage
- additional medical costs;
- costs for care or household help;
- travel expenses;
- home modifications;
- damage to assistive devices.
Loss of income
If you are temporarily or permanently unable to work due to the medical error, you can claim loss of income. Loss of earning capacity (verlies aan verdienvermogen) can also be eligible for compensation.
Smartengeld
In addition, you may be entitled to smartengeld (compensation for pain and suffering). This compensation covers pain, suffering and reduced enjoyment of life. You can read more on our page smartengeld in personal injury.
Psychological damage after a medical error
A medical error often also has psychological consequences. Anxiety, depressive complaints or loss of trust in healthcare providers are common.
This psychological damage can also form part of the compensation, provided the link with the medical error is sufficiently plausible.
What should you do if you suspect a medical error?
When you suspect a medical error, it is important to act quickly.
- request your complete medical file;
- note symptoms and their course;
- keep all relevant correspondence;
- seek legal advice.
More general information can also be found on our page personal injury lawyer.
Complaint, disciplinary procedure or compensation?
In addition to a compensation claim, you can also file a complaint or initiate a disciplinary procedure. However, these procedures have a different aim.
A disciplinary procedure (tuchtzaak) is aimed at upholding professional standards, not at compensation. For financial compensation a civil liability procedure is necessary.
Limitation periods for medical errors
A claim for compensation for a medical error usually becomes time-barred after five years from the moment you became aware of the damage and the liable party.
In addition, there is an absolute limitation period of twenty years after the medical act. Do not wait too long.
Will legal assistance cost me money?
In personal injury cases caused by a medical error, the costs of legal assistance are in most cases recovered from the liable party or their insurer. As a result, as a victim you generally do not bear a financial risk.
Why choose Arslan Advocaten?
Medical liability cases are legally and medically complex. We have extensive experience in recovering compensation for medical errors and know how to effectively deploy expert investigation and evidence.
In addition, we communicate clearly, act carefully and strive for the most complete compensation possible.
Would you like to know whether you are entitled to compensation after a medical error? Please contact us for a no-obligation assessment.
Read also
- Medical advice in personal injury: what does a medical adviser actually do?
- Expert investigation in medical liability: how it works and what to expect
- Step-by-step: claiming personal injury after an accident
Frequently asked questions
When am I entitled to compensation after a medical error?
You are entitled to compensation if there is a medical error, you have suffered damage and there is a causal link between the error and the damage. If one of these elements is missing, liability is often disputed.
Who can be held liable for a medical error?
Liability can lie with the physician, the hospital or the care institution, with the care institution often being held responsible for the conduct of its employees. Compensation is usually paid by the insurer.
What is the difference between a medical error and a complication?
A complication is a known risk that can occur despite careful treatment, while a medical error could have been avoided with correct conduct. The distinction is often determined by medical guidelines and expert investigation.
What evidence do I need to support my claim?
Important evidence includes the medical file, guidelines and protocols, statements from medical experts and the course of complaints before and after treatment. An expert can help determine whether the care remained within the professional standard.
Read also: Calculating personal injury: all damage items explained
🏥 Independent medical advice for your personal injury case
In medical personal injury cases Arslan Advocatuur works with MEDICA Medisch Advies — an independent medical advisory firm that works exclusively for victims of personal injury. Their BIG-registered physicians assess your medical file, map complaints and limitations and medically substantiate your claim. (BIG refers to the Dutch register for healthcare professionals.)
➡️ Read more about the role of a medical adviser in personal injury
