Private clinics – such as cosmetic centers, dental practices, or private hospitals – are rapidly gaining in popularity.
Many people choose these facilities because of short waiting times, personal service, and modern treatment methods.
But what if something goes wrong? Who is liable then: the doctor, the clinic, or another party?
In this article, we explain when there is a medical error, who the liable party is and how you compensation can obtain in the event of an error in a private clinic.
What is a private clinic?
A private clinic is a healthcare facility that offers medical or cosmetic treatments outside the regular hospital system.
Think of:
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Cosmetic clinics (Botox, fillers, eyelid corrections, breast surgeries)
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Dental centers
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Orthopedic or eye clinics
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Clinics for laser treatments or pain therapy
Although these healthcare institutions often operate commercially, they must meet the same standards of care as regular hospitals.
That means they are required to work in accordance with the professional standard and the applicable legislation, such as the BIG Act and the Wkkgz.
In other words: a healthcare practitioner must always exercise the care of a good healthcare practitioner. This means that he or she works according to professional standards – which in turn are based on training requirements, protocols, codes of conduct, and the latest insights from scientific literature and practice. These standards are not only used to assess errors, but they also form the basis for day-to-day practice within private clinics.
What is a medical error in a private clinic?
A medical error is an act (or the omission thereof) that does not meet what may be expected of a reasonably competent and careful healthcare provider.
In private clinics, this occurs in various forms, for example:
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Incorrect performance of a cosmetic treatment, surgery, or dental procedure.
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Incorrect dosage of injectables (such as Botox or fillers).
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Use of unapproved or unsafe products.
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Poor hygiene or unqualified staff.
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Insufficient information about risks, recovery, or alternatives.
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Delayed or inadequate aftercare for complications.
Professional competence and professional standardThe law stipulates that every physician and healthcare provider must act in accordance with the professional standard and the requirements of professional competence (as laid down in art. 7:453 BW). This means that a doctor must behave as may be expected of a reasonably acting and competent peer. If he does not, there is a shortcoming in the care.A breach of these standards also falls under the general duty of care. If a doctor does not act competently or does not adhere to the professional standard, this can lead to liability for a medical error. This applies to both acts and omissions (including insufficient explanation of risks or alternatives).In short, if a doctor or clinic deviates from the professional standard or the requirements of due care, there may be a medical error for which they can be held liable.
Also read:
👉 Mistake in cosmetic treatment: what are your rights?
👉 Medical error at the dentist or oral and maxillofacial surgeon
Who is liable in the event of a medical error in a clinic?
Liability depends on the legal relationship between the patient, the physician, and the clinic.
There are three main forms:
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The physician is self-employed (ZZP’er):
The physician is personally liable for their errors. In that case, the patient enters into a treatment agreement directly with the physician. -
The physician is employed by the clinic:
The clinic is liable for errors of its employees. This follows from Article 7:462 BW: the healthcare institution is liable for errors of its auxiliary persons. -
The treatment was performed by an unauthorized healthcare provider:
When someone performs medical procedures without a BIG registration, the clinic itself is responsible for admitting and employing that person.
Legal grounds for liability
Whether you can actually claim damages or compensation for pain and suffering after a medical error depends on the legal basis on which liability is founded. This can be done in two ways:
- Breach of contract (art. 6:74 BW):
If the doctor or clinic fails to fulfill the treatment agreement, this may constitute a breach of contract. Five elements are required: damage, a failure to perform, imputability, a causal link between the error and the damage, and default (art. 6:81 BW). - Unlawful act (art. 6:162 BW):
In case of conduct or omission that conflicts with the level of care expected of a reasonably competent and careful healthcare provider, there may be an unlawful act. There are also five requirements: damage, an unlawful act, imputability, a causal link, and relativity (art. 6:163 BW).
In short: you can hold the doctor or the clinic liable if the standards of care expected of a reasonably competent and careful healthcare provider have not been met. The appropriate claim and procedure depend on who formally entered into the treatment agreement and whether there is a failure to perform or an unlawful act.
In short: in most cases you can hold the clinic itself liable — even if the mistake was in fact made by an individual doctor.
Doctor’s liability for breach of contract
You can hold a doctor liable on the basis of breach of contract when a treatment agreement exists between you and the doctor and the doctor fails to fulfill their obligations under that agreement.This usually concerns a so-called best-efforts obligation: the doctor must make sufficient efforts to provide good care in accordance with the applicable professional standard, but often cannot guarantee the final result. Only if the doctor truly performs below standard—for example, by failing to act carefully, making mistakes, or providing insufficient explanation—do we speak of breach of contract.Difference between a best-efforts obligation and an obligation of result:
- With a best-efforts obligation (as is almost always the case in medical treatments), the focus is on the doctor’s effort and expertise. Not achieving the desired result does not automatically mean that a mistake has been made.
- In an obligation of result (for example, placing a prosthesis with the agreement that it will function), the intended result is what counts. If this is not achieved, a breach of contract may be established more quickly.
When breach of contract cannot be proven, in some situations liability can still arise on the basis of tort (Article 6:162 BW), for example if the doctor has acted carelessly or recklessly.Tip: It is therefore essential to always clearly record exactly what has been agreed with the doctor and to seek legal advice if in doubt.
How is imputability determined in the case of a medical error?
Not every error automatically means that the clinic is liable.There must be ‘attributability’: the mistake must be attributable to the doctor or clinic can be attributed. This can be done in two ways:
- Fault-based liability:
This applies if the doctor or healthcare provider has demonstrably acted negligently, for example by making an obvious mistake or not following the professional standard. This concerns a situation in which a reasonably competent colleague would not have acted that way. - Strict liability:
Sometimes the risk of a treatment lies with the healthcare provider, even if there is no direct fault. This can be the case when using defective equipment or engaging unauthorized staff. If that causes damage, the clinic can also be liable.
Which form of liability applies depends on the circumstances of the case. The difference is important: under fault-based liability you usually have to prove that the doctor really made a mistake. Under strict liability you do not have to; it is sufficient that you suffered damage due to the risk for which the clinic is responsible.
Difference between breach of contract and tort
People often think of liability immediately in terms of a medical error or poor execution of a treatment. But on what legal ground can you bring a claim against the clinic or the doctor? This can be done in two ways: on the basis of breach of contract or tort.
- Breach of contract
In this case, there is an agreement between you and the healthcare provider (for example, a treatment agreement). If the doctor or clinic does not (properly) comply with this agreement, it constitutes a breach of contract. Examples include failing to provide the agreed care, not adhering to protocols, or other shortcomings in carrying out the treatment. - Unlawful act
For an unlawful act, no agreement is required. A person commits an unlawful act when he/she acts in violation of the law, rules, or what society considers ‘careful’ conduct. For example: performing a treatment without the proper qualifications, or not complying with applicable professional standards or hygiene rules. Breach of this societal duty of care can lead to liability, even if there is no contract with the patient.
In short:
- In case of breach of contract a contract is required (and it is breached).
- In the case of tort no contract is needed; liability can arise from violation of statutory or social norms.
The clinic’s duty to inform
An important part of the duty of care is providing correct and complete information.
The clinic must inform you in advance about:
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the purpose of the treatment;
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the risks and complications;
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the costs;
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and possible alternatives.
Without this information, you cannot give “informed” consent.
If the duty to inform is violated, then the treatment has been carried out unlawfully and the clinic may be liable for the consequences.
Read also:
👉 Informed consent: right to information and consent
👉 The medical record: access, copy, and correction
Common mistakes in private clinics
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Cosmetic errors
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Asymmetrical results after fillers or Botox
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Infections or scars after surgeries
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Failed breast augmentations or eyelid corrections
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Dental errors
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Nerve damage from implants or root canal treatments
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Incorrect placement of crowns or bridges
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Infections due to poor hygiene
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Unauthorized practitioners
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Non-physician performing a medical procedure
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Use of unapproved substances
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Lack of medical supervision
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Administrative errors
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Incomplete file or incorrect patient data
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Lack of aftercare or follow-up appointments
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What damages can be compensated?
In the case of a medical error, you can claim various types of damages.
Material damage:
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Costs of corrective surgeries and medical treatments
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Medication and travel costs
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Loss of income due to incapacity for work
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Costs for psychological help
Non-material damage (pain and suffering):
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Pain, suffering and anxiety
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Physical or psychological limitations
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Aesthetic damage (such as failed cosmetic procedures)
Read also:
👉 Pain and suffering compensation for medical errors
👉 Compensation for medical liability
What to do in case of an error in a private clinic?
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Request your medical record
You have the right to access and a copy of your record. -
Obtain a medical expert opinion
An independent expert can assess whether the treatment was performed negligently. A medical feasibility study is an examination that assesses whether a particular medical treatment or procedure could reasonably have produced the desired result in a specific situation. This type of study is necessary when assessing medical liability, because it helps determine whether the acts or omissions of the healthcare provider actually caused the harm, or whether the negative outcome would have occurred anyway, regardless of the care provided. By conducting a medical feasibility study, experts can establish a link (or the absence thereof) between the medical conduct and the patient’s health outcome, which is crucial in legal assessments of liability. -
Document the error in writing with the clinic
Request a written response or use the internal complaints procedure. -
Seek legal assistance
A specialized lawyer can draft the letter of claim and negotiate on your behalf with the clinic’s insurer.
Also read:
👉 File a complaint after a medical error
👉 Loss of a chance in medical error cases
Why Arslan & Arslan Attorneys?
At Arslan & Arslan Attorneys we regularly handle cases against private clinics, cosmetic centers, and independent physicians.
Our lawyers specialize in medical liability and work with independent medical experts.
We ensure that:
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your case is carefully investigated;
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you free legal assistance receive (we recover the costs from the liable party);
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and you a maximum compensation receives for your injury and psychological damage.
Has a private clinic made a mistake? We will help you further
Have you suffered complications or damage after treatment in a private clinic?
Contact Arslan & Arslan Attorneys for a free assessment of your case.
We make sure you get what you are entitled to — expert, fast and completely free of charge.
