Medical liability and medical malpractice
Medical liability and medical malpractice
"Medical liability is not limited to the typical medical professions, but also applies to paramedical professions as well as in the beauty sector."
Medical liability exists when an injured party suffers damages as a result of medical treatment missed due to the fault of the health care provider.
The assessment framework is different depending on the nature of the relationship between the patient and the health care provider. A distinction is made between:
- A contractual relationship, m.n. concrete treatment (via agreement) is agreed upon between the two;
- An extra-contractual relationship, m.n. if no agreement was made e.g. forced admission, legally required treatments (read: vaccination), unconscious patient is picked up by ambulance etc.
A contractual relationship
At a contractual relationship a distinction will have to be made between the type of commitment underpinning the contract, i.e. an effort or a result commitment.
Typically, commitments are qualified by health care providers as well as hospitals as effort commitments. This means that the healthcare provider in question must use all means necessary to fulfill his commitment, but is not obliged to achieve a specific result. In other words, the healthcare provider must do everything necessary to establish a state of health or to pursue the cure or improvement of the state of health. The injured party will have to prove that the health care provider did not make sufficient efforts.
At exceptional cases there will be a performance commitment. That is, the health care provider involved is committed to a particular outcome to be obtained. With an obligation of result, it is sufficient to show that the specific result was not obtained.
In medical liability law, a few types of outcome obligations can be distinguished:
- A legal injunction or prohibition: e.g., guarantee that health care provider will not violate professional confidentiality;
- The obtaining of a well-defined result upon an explicit agreement between the health care provider and the patient:
- The means to be employed: e.g., delivery by cesarean section
- Or the result to be achieved: e.g., sterilization
- Performing common treatments correctly (low risk) e.g. extracting a tooth, the circumcision? of a boy etc.
- Not leaving inadmissible objects in the body e.g. needles, scissors, compresses
- Adherence to technical standards in place in the hospital.
An extra-contractual relationship
At an extra-contractual relationship fault liability applies (article 1382 B.W.). In an extra-contractual medical liability case, there should always be three components:
- An error;
- Damage;
- A causal link between the fault and the injury.
The standard of care will also need to be applied to determine whether or not medical malpractice has occurred.
This requires a comparison between the alleged act and the act of an normal, careful and circumspect caregiver (of the same category), posted in same circumstances. If the careful health care provider would not have committed this shortcoming, there is medical malpractice.
Medical liability is not limited to the standard or typical medical professions (healthcare professionals, nurses, doctors, etc.), but also applies to the paramedical professions (dieticians, occupational therapists, speech therapists, etc.), as well as in the beauty sector.
