After a medical treatment, it may happen that something goes wrong. The patient experiences harm, pain, or a poorer recovery than expected. But does that automatically mean there has been a medical error? Not always. In this blog we explain the difference between a medical error and a complication, when a doctor or hospital is liable, and how you can safeguard your rights.

What is a medical error?

A medical error (also called ‘malpractice’) means that a physician, specialist, or other healthcare provider did not act as may be expected of a reasonably competent and careful practitioner.
It involves a negligent act or omission, resulting in harm that could have been prevented with careful medical care.

Examples of medical errors:

• An incorrect diagnosis or late recognition of a condition;

• Wrong medication or dosage;

• Surgical errors (such as damaging nerves or organs);

• Insufficient aftercare or late treatment of complications;

• Incorrect or incomplete information to the patient (lack of informed consent).

Read more about this in our blog Medical liability in the Netherlands.

What is a complication?

A complication is an undesirable but known risk of a medical procedure, which can occur without anyone making a mistake.
Complications can arise despite careful and professional practice. They are often part of the medical risks that should have been discussed with the patient beforehand.

Examples of complications:

• An infection after surgery despite sterile conditions;

• Secondary bleeding or scarring;

• An allergic reaction to medication or anesthesia;

• An unexpected side effect of a treatment that, medically speaking, could not have been prevented.

If you were properly informed about this risk beforehand and the doctor acted with due care, there is usually no liability.

Informed consent regarding complications

Complications often play a role in determining whether you were properly informed about the risks.
If the doctor did not inform you or informed you insufficiently about possible complications, then your consent may be not legally valid been.
In that case, there may still be a breach of the duty to inform, even if the complication was not medically culpable.

Read more about this in our blog Informed consent: when is consent legally valid and when is it not?

When is a doctor or hospital liable?

A doctor or hospital is liable if:

1. The healthcare provider has made a mistake (negligent or incorrect conduct);

2. The patient has suffered harm as a result;

3. There is a causal link between the mistake and the harm;

4. The mistake can be proven, for example via the medical record or an expert report.

For liability, the mere existence of damage is not enough — there must also be a culpable error.

How can you prove this?

The most important evidence in medical liability is the medical record. It must state what was discussed, how the treatment was carried out, and how complications were handled.
Therefore, always request your record. You can read how to do this, step by step, in our blog Medical record: access, copy and correction.

In addition, an independent medical advisor is engaged to assess the file. This expert compares the treatment with what is standard practice in the field.

Practical example

A patient underwent hip surgery during which a nerve was damaged. The doctor had insufficient visibility during the procedure and acted too quickly. The harm was not the result of an unavoidable complication, but of an error in execution.
The insurer acknowledged liability and the patient received compensation of over €65,000 for medical expenses, loss of earning capacity, and pain and suffering.

What can you do if you are unsure?

Are you unsure whether you are dealing with a complication or a medical error?
Take the following steps:

1. Request your medical records;

2. Record your symptoms and the course of treatment;

3. Have the file assessed by an independent medical advisor;

4. Have a personal injury lawyer assess whether a liability claim is worthwhile.

Read more about this process in How does the personal injury process work?

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Types of compensation
When liability is acknowledged, you are entitled to compensation for both material and non-material damage.Think of medical expenses, loss of income, help in the household, and compensation for pain and suffering (smartengeld
).Read more about calculating smartengeld in our blog How can you calculate smartengeld?

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Why Arslan Advocaten?At Arslan Advocaten
we have many years of experience with medical liability cases. We work with specialized medical advisors, assess your file free of charge, and recover all costs from the liable party.