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Factors deciding on the amount of compensation due to medical mistakes in the view of judicial decisions

Factors deciding on the amount of compensation due to medical mistakes in the view of judicial decisions

The court, while determining an amount of the compensation due to medical mistake committed by the physician, first of all evaluates a type of the violated good, the scope and type of the health upset, duration of the suffering, age of the injured person, intensity of the negative physical and psychical sensations including pain, future prognosis and the degree of the perpetrator’s fault.

The court takes also under consideration the necessity of carrying on further medical procedures, long-term surgical treatment, and negative sensation connected with potential loss in physical attractiveness or lower self-esteem. Compensations awarded in proceedings due to medical mistakes are very often much lower than the amounts sought by injured. An amount most likely awarded in such trial is 30-40 thousand zlotys. Such amounts results mostly from the fact the amount of the remuneration is a measure of the judge’s estimation which the realties i.e. standards of life are taken under consideration in.

However, there are also rulings that award amounts much bigger that mentioned above. The example of such ruling in which a physician was found guilty of committing medical mistake and the amount awarded exceeded amounts usually awarded in cases due to medical mistakes was a ruling of the Regional Courtin Bydgoszczof July 19th, 1999 (file No I C 1150/98). In this case the Court found guilty of committing medical mistake the surgeon who, regardless to lack of medical indications, performed obviously unnecessary amputation of both breasts of the patient. In this case the injured party was awarded 150 thousand zlotys (from 300 000 zlotys sought by her). In the justification of the ruling, the judge stated that in this case it is undoubted that the surgeon willfully committed medical mistake, both with reference to the diagnostic mistake and (i.e. mistake in diagnosis) and to therapeutic mistake (i.e. mistake in treatment). In a Court’s opinion a compensation in the amount of 150 000 zlotys , due to amputation of the breasts (young age of the patient – 24-years old,  redundancy of the surgery, miss-performance in presenting the patient alternative forms of treatment, luck of consultancy of the surgeon  with the oncologist, omission in running necessary tests and treatments in order to confirm the diagnosis), performs a function attributed to compensation. The claim of 300 000 zlotys the Court found excessive.

Agata Skrabucha
PhD student of the Law and Administration Faculty atWarsawUniversity
International Law Institute
Chair of Private and Commercial International Law

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