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 that liability works, what the difference is between hospitals and independent physician practices, and how you can recover your damages.

Who is liable for a medical error in the hospital?

If an error is made by a doctor, nurse or other employee who is employed by the hospital, then the hospital is liable for the damage.
This is because the law stipulates that an employer is responsible for mistakes by its employees — this is called liability for subordinates.

The hospital bears the so-called ‘liability pursuant to Article 6:170 of the Dutch Civil Code’.
That means:

The patient does not need to sue the individual doctor, but can hold the hospital liable for that doctor’s mistake.

So the patient has one clear counterparty: the hospital.

Why does this principle apply?

The basic premise 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), making the hospital responsible for the safe and competent delivery of the treatment.

The hospital is therefore liable if:

• a doctor or nurse makes a mistake during the treatment;

• errors are made in administration, planning, or aftercare;

• there is insufficient supervision or oversight of the performance 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, for example surgeons, anesthesiologists, or radiologists.

In that case, liability is a bit more complicated.
Then it is assessed whether the patient could reasonably assume that the doctor was acting on behalf of the hospital.

➡️ If so — for example because the patient was treated in the hospital, under the banner of that hospital — the hospital remains liable.

➡️ If, however, it was clear that the doctor independently worked (for example, a private clinic or independent practice), then the doctor can personally liable are.

Examples from practice

• A nurse administers the wrong medication in the hospital.
  → The hospital is liable, because 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 may then be liable.

What if multiple parties are involved?

Sometimes different specialists work together on a single treatment — for example, the general practitioner, a specialist, and the anesthesiologist.
If something then goes wrong, it may happen that multiple parties are liable,

The law provides that if it is not exactly clear who made the error, all involved parties can be jointly and severally liable.
This means that as a patient you have the right to hold any one of them liable for the full damages, after which they can determine among 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:

• nurses;

• laboratory technicians;

• reception staff;

• administrative staff.

Even if a mistake is made there — for example, during the recording of medication, blood samples, or test results — the hospital can be held liable.

When is the hospital not liable?

There are a few exceptions in which the hospital is not liable:

• If the error was made outside the care relationship (for example, in a private setting).

• If the patient was knowingly treated by a independent physician outside the hospital.

• If there is an unforeseeable complication without fault (read more about this in our blog Complication or medical error: what is the difference?).

In most cases, however, the hospital remains liable, especially when the patient had no choice in the doctor who treated them.

How do you hold the hospital liable?

If you suspect that a medical error has been made, it is important to act carefully:

1. Request your medical records
   You have the right to view and obtain a copy of your file.
   Read more about this in Medical record: access, copy and correction.

2. Have the case assessed by a medical advisor
   This expert assesses whether the treatment deviated from the professional standard.

3. Engage a specialized lawyer
   A medical liability lawyer assesses whether the error can legally be regarded as negligence and holds the hospital liable.

Types of damages you can claim

In the event of a medical error in the hospital, you can be compensated for various types of damages, including:

• medical expenses and rehabilitation;

• loss of income due to incapacity for work;

• household help or home modifications;

• travel expenses to doctors and specialists;

• compensation for pain, sorrow and loss of enjoyment of life.

Read more about this in our blog Compensation for pain and suffering in medical errors.

Why choose Arslan Advocaten?

At Arslan Advocaten we have extensive experience with complex cases involving both doctors and hospitals.
We work with medical specialists and experts to carefully demonstrate the error and achieve the maximum compensation.

Our clients appreciate that we:

• offer direct personal contact with a lawyer;

• clearly explain what is legally achievable;

• and completely free of charge work for victims, because we recover our costs from the liable party.