When a medical treatment does not go well, this can have serious consequences both physically, emotionally, and financially. Many people then wonder if it was a medical error and if they are entitled to compensation. In this blog, we explain what medical liability entails, when a doctor or hospital can be held liable, and how the process of a claim works.

What does medical liability mean?

Medical liability means that a healthcare provider such as a doctor, hospital, midwife or physiotherapist can be held accountable if they have made a mistake that has led to damage to the patient. This is only the case if the healthcare provider did not act as a reasonably competent and careful caregiver would be expected to.

Important to know: Not every complication is a mistake. A medical treatment always carries risks. Only when the healthcare provider has violated a professional standard (for example, by making a wrong diagnosis, incorrect treatment, or insufficient aftercare), is there liability.

Read more about the general rules for personal injury in our article Liability for personal injury: what should you know.

When is it a medical mistake?

A medical error can occur in several ways, such as:

• A wrong or too late diagnosis;

• A mistake during surgery or treatment;

• Insufficient information about risks and alternatives (lack of informed consent);

• Incorrect medication or dosage;

• Poor aftercare or responding too late to complications.

Whether there is actually a medical mistake is assessed based on guidelines, protocols, and the so-called professional standard. This assessment takes into account the circumstances of the case and what a reasonably acting doctor should have done in that situation.

Informed consent: right to full information

Before a doctor performs a treatment, the patient must be well informed about the nature of the procedure, the risks, possible alternatives, and the chance of success. Only then can valid consent be given, also called informed consent.
If this information is missing, the consent can be invalid. The patient would never have consented if he had been properly informed. This can also lead to liability.

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

Evidence: the medical file is crucial

A claim stands or falls with evidence. The most important piece of evidence is the medical file. It should contain everything relevant to the treatment: test results, notes, correspondence, informed consent forms, and doctor’s reports.

Therefore, always request a copy of your medical file. This can be done simply with a written request based on the Medical Treatment Contracts Act (WGBO). How to do this is explained in our comprehensive guide Medical file: access, copy, and correction.

How does the process for medical liability work?

1. Taking stock of the facts – the entire file is requested and reviewed.

2. Medical advice – an independent medical advisor assesses whether there is a blameworthy mistake.

3. Liability – the healthcare provider or their insurer is formally held liable.

4. Negotiation – if liability is recognized, negotiations start about the amount of compensation.

5. Procedure – if there is a dispute over liability or damage, a court procedure may follow.

Read more about the approach in our article How does the personal injury trajectory work?.

Types of compensation

A victim of a medical mistake may be entitled to both material and immaterial compensation.

Material damage includes amongst others:

• Medical costs not covered by health insurance;

• Travel expenses to hospitals and specialists;

• Loss of income in the event of disability;

• Costs for household help or informal care.

Immaterial damage (compensation for pain and suffering) is compensation for pain, sorrow, and reduction in joy of life. The amount depends on the severity of the injury and the consequences for everyday life. If you want to know how this is calculated, read our blog How to calculate compensation for pain and suffering?.

How long can you still file a claim?

For medical liability, statutory limitation periods apply. In principle, the claim expires five years after you became aware of the damage and the (possible) liable party. In some cases, a maximum period of twenty years applies after the error.

To prevent your rights from expiring, it is important to send a written interrupt letter in time. We can help you draft this letter and secure your rights.

Common misconceptions

• A complication is not automatically a mistake;

• A complaint to the hospital does not automatically lead to compensation;

• Even without ‘hard’ MRI deviation, there can be demonstrable damage;

• You don’t have to wait for the complaint procedure to establish liability.

Why choose Arslan Advocaten?

At Arslan Attorneys, we have extensive experience with medical liability cases. We assess free of charge whether there are enough points of contact for liability, engage the appropriate medical experts, and reclaim all costs from the liable party.
That way you can be sure you get what you are entitled to, without financial risks.

Want to know if your case has a chance of success? Then contact our specialized personal injury lawyers for a free review of your file.