Written by Onur Arslan, personal injury lawyer at Arslan Advocaten. Registered in the areas-of-law register of the Netherlands Bar for employment law and personal injury. Last updated: 31 August 2026.
What is a medical error?
A medical error is treatment that departs from what a reasonably competent and reasonably acting care provider would have done in the same circumstances. So not every poor treatment outcome is an error. The test is not the outcome but the conduct: did the care provider fall below the professional standard that could be expected of them at that moment, with the knowledge then available?
That standard — often referred to as the care of a good care provider — is part of the treatment contract between patient and care provider. That is article 7:453 of the Dutch Civil Code (part of the Medical Treatment Contracts Act): the care provider “must observe the care of a good care provider in their work and in doing so acts in accordance with the responsibility resting on them, arising from the professional standard and quality standards applying to care providers” within the meaning of the Care Quality, Complaints and Disputes Act.
That means two things that in practice are often mixed up:
- A treatment can end badly without anyone having made an error. That is a complication.
- An error can have been made without your suffering permanent loss from it. There is then an error, but in principle little to claim.
Examples of situations that can qualify as a medical error:
| Type of error | What it usually concerns |
|---|---|
| Diagnostic error | a condition is missed, or established too late or wrongly, while the symptoms gave reason to do so |
| Treatment error | a procedure is performed technically incorrectly, or on the wrong part of the body |
| Medication error | the wrong drug, the wrong dose, or a known interaction or allergy is overlooked |
| Aftercare error | signs of complications are not recognised or are followed up too late |
| Information error | you were insufficiently informed about risks and alternatives, so that you could not make an informed choice |
| Organisational error | handover, record-keeping or protocols fall short |
| Material error | a defective implant, prosthesis or aid |
By way of illustration. A patient discusses with the GP a complaint that can be approached in two ways: waiting and watching, or referral for a procedure. The procedure is chosen. Afterwards it turns out to have an after-effect about which he had heard nothing in advance, and he moreover only then hears that waiting was a realistic option. That the procedure itself was performed correctly does not rule out a breach of the standard: the question is whether he was informed about the risks and the alternatives, and whether with that information he would have made the same choice. This is an example situation illustrating the rule, not a case of our firm.
Whether something in your case actually fell below the standard can seldom be established with the naked eye. That judgment in principle comes from an independent medical expert from the same field, who tests what happened against the guideline or protocol that applied at the time.
When is a doctor or hospital liable?
Liability only arises once four things are established together: a standard has been breached, you have suffered loss, there is a causal connection between the two, and the claim is not time-barred. If one of those four is missing, the claim fails — however far-reaching the consequences are.
| Requirement | What you must be able to substantiate |
|---|---|
| Breach of the standard | the conduct fell below what a reasonably competent professional colleague would do |
| Loss | concrete detriment: costs, loss of income, permanent injury, compensation for pain and suffering |
| Causal connection | without the error your situation would in principle have been better |
| the limitation period has not yet expired |
Who do you address? In principle the hospital, even where the error was made by an individual doctor. A hospital is centrally liable for shortcomings within its walls, even if the specialist involved is formally not an employee. That is article 7:462(1) of the Civil Code: where acts in performance of a treatment contract take place in a hospital that is not a party to that contract, the hospital is jointly liable for a shortcoming in them, “as if it were itself a party to the contract”. That liability moreover cannot be limited or excluded (article 7:463 of the Civil Code). That saves you the discussion about who exactly did what.
Outside the hospital the position is different. With a GP, dentist, physiotherapist or independent clinic you in principle address that practice or institution itself, and therefore its professional liability insurer.
What liability is precisely not:
- A poor outcome in itself. Many procedures carry a real percentage of risk that can simply materialise.
- A difference of view after the event. If there were several defensible choices at the time, opting for one of them is in principle not an error.
- Unfortunate treatment of you as a person. Discourteous conduct can be a ground for a complaint, but rarely in itself produces compensation.
In practice an insurer seldom admits liability at once. More often a reasoned rejection comes first, after which the conversation shifts to the question of which expert will assess the case.
How much compensation can I get for a medical error?
There is no tariff: the compensation is the sum of your concrete loss. So there is no amount that "goes with" a missed diagnosis or a surgical error — two patients with the same error can receive widely differing amounts, because their loss differs. What you can claim depends on the seriousness and duration of the consequences, your age, your income situation and the extent to which you need care or adaptations.
The compensation falls into two parts.
Material loss — the demonstrable financial detriment:
| Head of loss | Explanation |
|---|---|
| Loss of earning capacity | income missed now and in the future, including missed career steps |
| Medical costs | corrective treatment, the deductible, aids, medication |
| Domestic help | what you can no longer do yourself |
| Care and nursing | including where relatives take it on |
| Adaptations | the home, transport, the workplace |
| Travel and accommodation costs | visits to treating practitioners and experts |
| Study delay | with younger injured parties |
| Extrajudicial costs | the costs of your lawyer and medical adviser, where liability is admitted in principle borne by the liable party |
Non-material loss (compensation for pain and suffering) compensates the suffering itself: pain, fear, loss of enjoyment of life, permanent limitations. In the Netherlands the amount is determined by comparison with cases awarded previously. Compared with neighbouring countries the amounts are modest; only with very serious and permanent injury are the highest categories reached.
Where death is caused by a medical error, the statute provides a separate, more limited set of entitlements: funeral costs, loss of maintenance for surviving relatives and — since the introduction of compensation for bereavement — a fixed amount for a defined circle of close relatives. The circle is set out in article 6:108(4) of the Civil Code (in the case of death) and article 6:107(2) of the Civil Code (in the case of serious and permanent injury): the spouse or registered partner, the life partner running a lasting joint household, the parent, the child, the person who on a lasting basis cares for the victim within a family unit or for whom the victim provided that care, and a residual category of “another person who stands in such a close personal relationship” that reasonableness and fairness require them to count as a close relative.
The amounts are set out in the Bereavement Compensation Decree and range, depending on the relationship and the situation, from € 12,500 to € 20,000. They are fixed by law; there is no negotiating about them. The scheme has applied since 1 January 2019 and there is no transitional law: where the event occurred before that date there is no entitlement to compensation for bereavement.
What the discussion is about in practice is seldom the existence of the loss, but its extent: which part of your current situation can be attributed to the error, and which part would have been there even without it? With a patient who was already ill — and with medical cases that is virtually always so — that is the heart of the file.
How do I hold a hospital or doctor liable?
In principle you start by requesting your complete medical file, after which you hold the care provider liable in writing and the case ends up with its insurer. Hospitals are insured for this; the handling of your claim therefore almost always runs through a claims handler or medical adviser of that insurer.
The route in steps:
- Requesting the file. You are entitled to inspect and to a copy of your medical file. Request the complete file — including operation reports, nursing records, correspondence and imaging. Without the file no assessment at all is possible.
- Medical assessment of the substance. A medical adviser looks at whether the conduct departed from the applicable guideline, and whether your current situation can reasonably be a consequence of that.
- Holding liable. A written letter in which you hold the care provider liable, describe the error and interrupt the limitation period.
- The insurer’s response. It can admit, reject or ask for further investigation. A period of several months is not unusual.
- Expert examination. Where a difference of view persists, an independent expert is often appointed, preferably jointly.
- Negotiation or proceedings. Most cases end in a settlement. If that does not work, the court remains — sometimes preceded by preliminary-issue proceedings about one sticking point. The preliminary-issue procedure is set out in article 1019w et seq. of the Code of Civil Procedure and is expressly open to anyone who “holds another liable for loss they suffer through death or injury” — so medical liability simply falls within it. The court decides on one clearly defined point in dispute the resolution of which can contribute to a settlement agreement, and rejects the application if that contribution is insufficient (article 1019z of the Code). The costs are assessed under article 1019aa of the Code as reasonable costs within the meaning of article 6:96(2) of the Civil Code.
What you can do yourself and what is better to wait for: requesting your file and recording your own recollections — dates, names, what exactly was said — is best done at once. Holding the other party liable is itself less innocent than it looks: the wording of that letter helps determine what the discussion will be about for the rest of the process.
Source: the Dutch government and the Care Quality, Complaints and Disputes Act, on patients’ rights in the case of complaints and loss.
What is the difference between a complication and a medical error?
A complication is a known and accepted risk of treatment that is in itself correct; a medical error is a departure from the professional standard. The distinction determines whether there is anything to recover, and it is precisely the point on which insurers most often reject a claim.
Yet the dividing line is less hard than the word "complication" suggests. An error can have been made around a genuine complication too:
| Question | Why it matters |
|---|---|
| Was the risk known and accepted? | an unknown or unusual consequence points rather to an error |
| Were you informed about it in advance? | missing information can in itself amount to a breach of the standard |
| Was the complication recognised in time? | recognition or aftercare that came too late can indeed be an error |
| Was the indication correct? | a correctly performed procedure that was not necessary remains culpable |
By way of illustration. Someone develops a wound infection after a minor procedure — a known and accepted risk. In the days that follow the patient calls twice with increasing pain and fever, but is told to wait and see; only a week later is the infection treated. The insurer’s letter puts it down to "a complication". That answer answers only half the question: the fact that the occurrence of the infection need not in itself be an error says nothing about whether the signs were recognised and followed up in time. That is where the distinction lies. This is an example situation illustrating the rule, not a case of our firm.
In other words: the answer "that is a known complication" does not end the conversation. It moves it to the question of how that complication was dealt with.
How do I prove that the error caused my loss?
In principle the burden of proof rests on you as the patient, but the law recognises mitigations for situations in which that proof cannot reasonably be provided. With medical cases the causal connection is the most difficult part: you were already ill, so the question is not whether you have suffered loss, but what your life would have looked like without the error.
Three mechanisms that can play a role in that:
- The hypothetical scenario. The expert describes the course that would have been expected with correct conduct, and that is compared with your actual situation.
- Loss of a chance. Where it cannot be established whether you would have been better off without the error, but it can be established that your chance of a better outcome was reduced, the loss can be compensated in proportion to that reduction in chance. That arises above all with diagnoses made too late. The Supreme Court worked out the doctrine of loss of a chance in its judgment of 21 December 2012, ECLI:NL:HR:2012:BX7491: first it must be established that there is a causal connection between the breach of the standard and the loss of the chance, and only then is the extent of that loss of a chance estimated. The Supreme Court expressly distinguishes that from proportional liability, which concerns uncertainty about the causal connection itself.
- The reversal rule. Where a standard has been breached that is precisely intended to prevent the risk that has materialised, the causal connection can in principle be assumed, unless the party addressed makes the contrary plausible. The test comes from Supreme Court 29 November 2002, ECLI:NL:HR:2002:AE7351: what is required is that it is established that there has been conduct contrary to a standard intended to prevent a specific danger, and that the party relying on that breach makes it plausible that precisely that danger has materialised. Where that is satisfied, the causal connection is assumed subject to evidence to the contrary. The rule is intended for the clear-cut cases and is applied with restraint in medical cases.
In addition the record-keeping carries weight. A care provider is obliged to keep a file; if that is incomplete or the recording of a crucial moment is missing, that can work in your favour in the weighing of the evidence.
How long do I have to bring a claim?
For loss caused by injury or death there is a single period: five years, counted from the day after the one on which you became aware of both the loss and the person liable for it. The absolute twenty-year limit that applies to other claims for damages is expressly not applicable to personal injury and fatal accident claims (article 3:310(5) of the Civil Code). So that five-year period does not start automatically on the day of the treatment, but at the moment you actually become aware of the loss and of who is responsible for it. That difference is large with medical cases. A missed diagnosis sometimes only comes to light years later; the five-year period can then only have started running at that later moment.
| Situation | Where the period in principle starts |
|---|---|
| Error immediately clear | at the moment of the treatment or shortly after it |
| Error only discovered later | at the moment you became aware of the loss and of the responsible party |
| Minor patient | article 3:310(5) of the Civil Code: if the patient was a minor on the day the loss and the liable party became known, the five-year period only starts running on the day after they reach the age of majority |
| Very old event | with personal injury or fatal accident loss no absolute period of twenty years applies; only the five-year period after becoming aware of the loss and the liable party |
Interrupting is simple and sensible. A written communication in which you unambiguously reserve your right to performance starts a new period running. If you are unsure whether your case is still in time, have that assessed before you do anything else — not afterwards.
*Read on: limitation in medical liability cases.*
Complaint, disciplinary case or claim for compensation: which do I choose?
That depends on what you want to achieve: acknowledgement, a judgment about the care provider, or money. These three routes exist alongside one another and do not exclude each other, but they produce essentially different things. Anyone who wants compensation will not get where they want to be with a disciplinary complaint.
| Route | Where you end up | What it produces | What it does not produce |
|---|---|---|---|
| Complaint to the care provider | the complaints officer of the hospital or practice | a conversation, an explanation, sometimes acknowledgement and improvement | in principle no compensation |
| Disputes body | an independent disputes committee under the Care Quality, Complaints and Disputes Act | a binding opinion; under article 20 of that Act the disputes body can award compensation up to at least € 25,000 | unsuitable for large personal injury claims |
| Disciplinary complaint | the regional disciplinary tribunal for healthcare | a judgment on the conduct of the individual care provider, possibly a sanction | no compensation for you |
| Civil claim | the care provider and its liability insurer, ultimately the court | full compensation of your loss | no disciplinary sanction |
| Report | the Health and Youth Care Inspectorate | supervision of structural failings | no individual redress |
In what order? A complaints conversation often produces factual information that is usable later, and does not cause anything to become time-barred. A disciplinary ruling in which a breach of the standard is established can serve as supporting evidence in a civil case — but the converse also applies: a disciplinary ruling rejecting the complaint is readily cited by insurers. So consider both routes in conjunction.
Bear in mind with all three: the care provider’s complaints procedure has periods of its own, and those stand apart from the limitation of your claim for compensation.
Sources: the Care Quality, Complaints and Disputes Act (complaints and disputes) and the Healthcare Professions Act (disciplinary law).
Do I need a lawyer, and what does that cost?
A lawyer is not obligatory, but with medical cases the inequality of knowledge is great: on the other side there is almost always an insurer with a medical adviser of its own. Where liability is admitted, the reasonable costs of your legal assistance are in principle borne by the liable party, as part of your loss. That makes the threshold lower than people usually think.
| Form of funding | How it works | What to look out for |
|---|---|---|
| Costs borne by the liable party | where liability is admitted your reasonable costs are reimbursed | before admission there is no cover yet |
| Legal expenses insurance | your policy covers the case | under article 4:67 of the Financial Supervision Act the policy must expressly provide that you may choose a lawyer yourself to represent your interests in court or administrative proceedings, or where there is a conflict of interests. The Court of Justice interprets “proceedings” widely (CJEU 7 November 2013, C-442/12, Sneller/DAS; CJEU 7 April 2016, C-460/14, Massar; CJEU 14 May 2020, C-667/18 on mediation) |
| State-funded legal aid | a legal aid certificate through the Legal Aid Board, with an own contribution | income and capital limits |
| No cure no pay | a percentage of the proceeds | bound by strict rules at the bar; always ask about the conditions |
| Hourly rate | paying privately | ask in advance for an estimate and for interim arrangements |
What a specialist lawyer actually does in this type of case is less legal than expected: getting the file complete, instructing the right medical adviser, helping determine the terms of reference for the expert — because those terms of reference steer the outcome — and substantiating the extent of the loss. With us you can have your situation assessed free of charge before you decide anything.
Where you were treated determines who you turn to
The legal standard is the same everywhere, but the liable party and the practical route differ per setting. This overview helps you determine where your case belongs.
| Where the error was made | Who you in principle address | Particular point |
|---|---|---|
| Hospital | the hospital | central liability, including for specialists not in its employment |
| GP practice | the practice or the GP | often questions of diagnosis and referral; record-keeping is decisive |
| Independent or private clinic | the clinic | watch the insurance cover and the continuity of the clinic |
| Dentist or oral surgeon | the practice | a route of its own; see the separate page below |
| Midwifery and childbirth | the hospital or the midwifery practice | a very long period of loss where the child is injured |
| Anaesthesia | the hospital | see the separate page below |
| Pharmacy | the pharmacy | medication and interaction monitoring |
| Abroad | depends on the applicable law | periods and entitlements can differ greatly |
Can I also get compensation for psychological injury?
Yes, but not for every form of grief: compensation in principle requires a condition recognised in psychiatry, established by an expert. Low mood, anger or shaken trust after a failed treatment are understandable, but do not in themselves automatically produce an independent entitlement.
Psychological injury can nevertheless land in the loss in various ways:
- as compensation for pain and suffering, where a recognised condition has been established;
- as material damage, where the psychological consequences lead to absence from work or to treatment costs;
- as part of the injury, where the psychological complaints arise from the physical injury itself.
For close relatives a separate, more limited regime applies. Anyone who themselves becomes ill through being confronted with the injury of a loved one can in some circumstances claim shock damages; in addition there is fixed compensation for bereavement. For shock damages the framework from Supreme Court 28 June 2022, ECLI:NL:HR:2022:958 applies: what is decisive includes the nature, circumstances and consequences of the wrongful act towards the primary victim, the way in which the close relative was confronted with it and how far that was unexpected, and the nature and closeness of the relationship. What is compensated is the loss arising from mental injury established by objective standards and serious in nature, duration and/or consequences. The former requirement of perception or direct confrontation is no longer an independent threshold, but one of the points of view. The bereavement amounts range from € 12,500 to € 20,000 and apply only to events from 1 January 2019 onwards.
With pregnancy-related cases too — a missed diagnosis leading to a miscarriage or to fertility problems — this combination of physical and psychological injury almost always arises at the same time.
What is in my medical file, and how do I get it?
You are entitled to inspect and to a copy of your medical file, in principle free of charge, and the care provider must cooperate with that within a reasonable period. You also have the right to have inaccuracies corrected and to have a statement of your own added to the file. Article 7:456 of the Civil Code (the Medical Treatment Contracts Act) requires the care provider, on request, to give inspection of and a copy of the data in the file; that provision does not itself state a period. That follows from article 12(3) of the GDPR: the care provider must respond without delay and in any event within one month of receiving the request, with an extension of a maximum of two months where the request is complex — about which you must then be informed within that first month. Under article 12(5) of the GDPR the first copy is free of charge; only with manifestly unfounded, excessive or repeated requests may a reasonable fee be asked.
What you request is more important than the fact that you request it. Expressly ask for:
- operation and procedure reports;
- nursing records and the clinical course;
- imaging and the accompanying radiology reports;
- laboratory results;
- correspondence between treating practitioners and with the GP;
- the record of informed consent.
The file is not only evidence, it is also a timeline. Precisely the moments at which nothing was noted, while something should have happened, are often telling in this type of case.
*Read on: medical file: inspection, a copy and correction.*
How long does a medical liability case take?
Reckon in principle on a duration of one to several years; cases with permanent injury usually take longer. That is not because of slowness, but because of the nature of the subject matter: the loss can only be assessed reliably once your medical situation is reasonably stable — the so-called final medical condition.
What determines the duration above all:
| Factor | Effect on the lead time |
|---|---|
| Admission or denial of liability | denial soon adds an expert process |
| Expert examination | appointment, terms of reference and reporting take months |
| Final medical condition | as long as your situation is changing, the loss cannot be assessed definitively |
| Complexity of the loss | income loss over a long period requires actuarial substantiation |
| Willingness to settle | most cases end outside court |
Where liability has been admitted and the process is long, an advance payment is customary, so that you do not have to wait years for the outcome before anything is paid.
Step-by-step plan: what to do immediately after a suspected medical error
- Request your complete medical file, including imaging.
- Record your own recollection: dates, names, what was said, what you noticed.
- Keep all correspondence, appointment confirmations and discharge letters.
- Ask for a conversation with the treating practitioner or the complaints officer — and make a record of that conversation.
- Have your situation assessed medically and legally before you sign or accept anything.
- Interrupt the limitation period in writing if there is any doubt about the period.
- Do not sign any full and final discharge as long as your medical situation is still changing.
Your situation in particular
| Situation | What it turns on | Read on |
|---|---|---|
| Dentist or oral surgeon | a liability route of its own, often with corrective treatment as the core of the loss | medical error at the dentist or oral surgeon |
| Anaesthesia | rare but serious injury; the protocol and monitoring are central | medical error in anaesthesia |
| Childbirth | injury to the mother or the child, with a very long period of loss | medical errors in childbirth |
| Wrong diagnosis | missed, too late or incorrect; often a question of loss of a chance | wrong diagnosis: when is there a medical error? |
| Limitation | when the period starts, and how you interrupt it | limitation in medical liability cases |
| Your file | inspection, a copy and correction | medical file: inspection, a copy and correction |
| Expert examination | appointment, terms of reference and what a report is worth | expert examination in medical liability cases |
| Authorisation | who may request medical information on your behalf | medical authorisation or power of attorney |
| Professional confidentiality | when a doctor may share your data with third parties | breach of professional confidentiality |
| Informed consent | insufficient information as an independent breach of the standard | informed consent |
| Medical adviser | what they do and why the terms of reference matter | medical advice in personal injury cases |
| Medical expert examination | the independent examination and your rights in it | medical expert examination in personal injury cases |
| Causation | the connection between the error and the loss | medical causation in personal injury cases |
About this advice
Arslan Advocaten handles personal injury and medical liability cases from offices in The Hague, Rotterdam, Amsterdam, Utrecht, Tilburg and Eindhoven. We assess your situation free of charge and work with independent medical advisers. Besides Dutch we speak Turkish and Polish.
Call 070 450 0300 or send us your question via the contact form. We will tell you where you stand and what the next step is.
This page gives general information and is not legal advice on your own case.