MEDICAL ERRORS AND COMPENSATION UNDER BELGIAN  LAW

by Herman Naeyaert

According to the American Institute of Medicine 100.000 patients passed away as result of a medical error or mistreatment by doctors, hospitals, nursing staff, etc …
A report by the London University College, issued in December 1999, came to the conclusion that yearly 40.000 people die in U.K. hospitals as a result of a medical error.

These figures are about the same in all countries in the western world and lead to the shocking conclusion that in the USA and Europe 4 people die each day as result of medical errors or mistreatment. These figures equal the number of victims killed in traffic accidents.

In Belgium every year about 2.000 complaints are lodged with an increase of 20% per year; 210 complaints end in a legal procedure; 17% result in compensation.

The medical errors are divers: wrong diagnosis, wrong medicines, mistreatment, deficient tools, errors during the operation, etc …

How to get compensation

According to art. 1382 of the Belgian Civil Code, the victim has the burden of proof about the error, the damages occurred and the direct causal relation between error and damages sustained.

The victim or his/her heirs have to face important difficulties: 

• who committed the error: the doctor, the nurse, the hospital?

• a real omerta of all care takers about the exact circumstances of the mistreatment, notwithstanding the recent Act of 22nd August 2002, obliging hospitals to produce at first request the patients file.

• doctors are not allowed to acknowledge their liability towards the victim according to their insurance policy in order to avoid collusion between doctor and patient.

• the nature of the problem: was it a complication or a real error?

• the procedure to get compensation is expensive and long lasting.

Before starting a real legal procedure, the victim will first of all request the production of the patients file according to the Act of 22nd August 2002 about the patients´ rights. 

The patients file gives the opportunity to the victim/heirs to ask a first opinion to a private doctor.  The next step is to contact the ombudsman of the hospital in order to seek for an amicable settlement via the intervention of the insurance company covering the professional liability of the hospital or the doctor. 

A written complaint to the Disciplinary Council of Doctors may also be considered but will never result in a compensation, only in a disciplinary sanction of the doctor in case of an important error. 

When no settlement is reached, the victim has to start a legal procedure. He has the choice between a civil procedure and a criminal procedure. 

a) Civil procedure 

As the Court has in general no expertise in medical matters, it is vital to request the nomination of a medical surveyor (or team) with a mission to conduct an investigation about the medical error. 

This nomination can be asked via summary proceedings within a delay of 3 months after the discovery of the medical problem. The advantage is that the procedure allows the victim to collect very quickly information, the memory of the nursing staff and the doctors is very fresh and the risk of disappearing of medical files is very low. 

The victim, via the assistance of his lawyer, can have a certain impact on the survey: he can suggest the nomination of a particular medical examiner or oppose the nomination of another one in order to avoid collusion with a suspect doctor. 

This survey can be followed by a private expert. Moreover the patient (claimant) has the possibility to produce some documents, formulate questions and remarks, suggest to interview some persons, etc … 

The problem is who to sue in this procedure: the doctor, the nursing staff, the hospital? 

An other problem is the exact relationship between the doctor and the hospital.  Is the surgeon operating as an independent or as an employee of the hospital ? There are indeed different ways of cooperation and the patient is totally unaware about this relationship when he/she starts the procedure. 

b) Criminal procedure 

A victim of a medical mistreatment has also the possibility to lodge a criminal complaint on the basis of art. 418 of the Belgian Criminal Code (unvoluntary homicide and injuries). 

The written complaint is, with the assistance of a lawyer, lodged with the Court who nominates a medical expert or team.  An escrow of 2.000,-- à 2.500,-- € is to be paid in order to finance the inquiry. 

The disadvantage of this procedure is that there is no impact at all by the victim: no possibility to rule out an unwanted expert, no intervention or suggestions possible to conduct the survey.  The attitude of the patient is passive (wait and see). 

The reason is that the enquiry procedure is secret: only after the closing of the enquiry the patient has for the first time the right to examine the criminal file. 

Another disadvantage is that the suspect (doctor) can argue that his right of defense might not have been respected, which may result in an appointment of a new team of medical examiners by the criminal court. 

If the Public Prosecutor decides not to prosecute the suspect, the case can still be brought before a civil court. 

No fault liability 

Seen the many disadvantages of the fact that the victim (heirs)have the burden of proof of the medical error, some countries have decided to compensate patients without having to establish the liability of the doctor, the hospital, the nursing staff. 

On the basis of “no fault liability” the victim will be compensated via a Fund, financed by the government, insurance companies, employers, etc … 

The victim has only the burden of proof of the extra ordinary character of the damage, resulting from the medical error. Finland, Sweden, Norway and Denmark have such legislations. 

New Zealand has even adopted legislation since 1974 in order to compensate victims of all kinds of accidents, thus not limited to medical negligence only.  Victims of all kinds of accidents are compensated via the Accidents Compensation Corporation (ACC). 

Recently a political debate started in Belgium in order to adopt also the no fault liability for victims of medical errors. 

No doubt this legislation would be extremely beneficial for the victims and we can only welcome the adoption of this new legislation as soon as possible. 

Herman Naeyaert

Lawfirm  NAEYAERT,  CARSAU  &  DE  ROECK

herman.naeyaert@antlaw.com