When you suffer damage due to a medical error, it is not always clear who exactly is liable: the doctor, the hospital, or both.
Many patients think that only the doctor is responsible, but in most cases, the legal liability lies with the hospital.
In this blog, we explain how this liability works, what the difference is between hospitals and independent doctors’ practices, and how you can recover your damages.
Who is liable for a medical error in the hospital?
If a mistake is made by a doctor, nurse, or other employee who is employed by the hospital, the hospital is liable for the damage.
This is because the law dictates that an employer is responsible for mistakes by his employees – this is called liability for subordinates.
The hospital bears the so-called ‘liability under article 6:170 BW’.
That means:
The patient does not need to address the individual doctor, but can hold the hospital liable for the doctor’s mistake.
The patient therefore has one clear counterparty: the hospital.
Why does this principle apply?
The assumption is that the hospital is responsible for the organization of care and for the people who work in it.
A patient enters into a treatment agreement with the hospital (and not always directly with the doctor), which makes the hospital responsible for a safe and expert execution of the treatment.
The hospital is therefore liable if:
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a doctor or nurse makes a mistake during treatment;
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mistakes are made in administration, planning, or aftercare;
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there is insufficient supervision or control over the execution of medical procedures.
And what if the doctor is not employed by the hospital?
Not all doctors are employees of the hospital.
Some work as independent specialists or partnerships within the hospital, such as surgeons, anesthesiologists, or radiologists.
In that case, the liability is a bit more complicated.
Then it is looked at whether the patient could reasonably assume that the doctor acted on behalf of the hospital.
➡️ If that is the case — for example, because the patient was treated in the hospital, under the flag of that hospital — the hospital remains liable.
➡️ However, if it was clear that the doctor was independent (for example a private clinic or independent practice), then the doctor can be personally liable.
Practical examples
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A nurse administers the wrong medication in the hospital.
→ The hospital is liable, as the nurse is an employee. -
An independent radiologist misreads an X-ray in the hospital.
→ The hospital is usually liable, unless it is clear that the radiologist worked outside the organization. -
A surgeon makes a mistake in a private clinic outside the hospital.
→ The clinic or the doctor themselves can then be liable.
What if multiple parties are involved?
Sometimes different specialists work together on one treatment —for example the general practitioner, specialist, and anesthesiologist.
If something then goes wrong, it may turn out that multiple parties are liable.
The law states that if it is not exactly clear who made the mistake, all parties involved can be jointly and severally liable.
This means that as a patient you have the right to hold one of them accountable for the entire damage, after which they can decide amongst themselves who pays which part.
Hospital liability for errors by support staff
Hospitals are not only responsible for medical specialists, but also for support staff, such as:
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nurses;
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laboratory technicians;
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receptionists;
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administrative staff.
Also, if a mistake is made there – for example in the registration of medication, blood samples, or test results – the hospital can be held accountable.
When is the hospital not liable?
There are a few exceptions where the hospital is not liable:
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If the mistake was made outside of the care relationship (for example in a private setting).
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If the patient knowingly received treatment from an independent doctor outside the hospital.
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If there is an unforeseeable complication without a mistake (learn more about this in our blog Complication or medical error: what’s the difference?).
In most cases, however, the hospital remains liable, especially when the patient had no choice in the doctor treating them.
How do you hold the hospital accountable?
If you suspect that a medical error has been made, it is important to act carefully:
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Request your medical records
You have the right to view and get a copy of your records.
Learn more in Medical records: viewing, copying, and correction. -
Have the case assessed by a medical advisor
This expert evaluates whether the treatment deviated from the professional standard. -
Engage a specialized lawyer
A medical liability attorney evaluates whether the error can legally be classified as negligence and holds the hospital accountable.
Types of damages you can recover
For a medical error in the hospital, you can get various types of damage compensated, including:
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medical costs and rehabilitation;
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income loss due to disability;
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household help or home adaptations;
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travel expenses to doctors and specialists;
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compensation for pain and suffering and loss of enjoyment of life.
Learn more about this in our blog Calculating damages for medical errors.
Why choose Arslan Advocaten?
At Arslan Advocaten, we have extensive experience with complex cases involving both doctors and hospitals.
We work together with medical specialists and experts to carefully demonstrate the error and realize the maximum compensation.
Our clients appreciate that we:
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provide direct personal contact with a lawyer;
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clearly explain what is legally achievable;
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and offer totally free services for victims, as we recover our costs from the party-at-fault.
