Compensation for medical negligence – what are our rights
Patients using medical services have rights guaranteed by law which must be respected by hospital staff.
The medical occupation is a regulated profession, and its pursuit is governed by laws and regulations. Healthcare professionals must comply with the medical standards for the provision of healthcare services which are laid down under acts of the Ministry of Health. The conduct of medical professionals must comply with the codes of good medical practice.
Compensation for medical negligence
There is no legal definition for medical negligence provided by the law. In our view, this is an act or omission by a medical professional that runs contrary to the legal framework or good medical practice, threatening the patient’s health or life. Claims for compensation are typically based on:
- incorrect treatment or diagnosis;
- inadequate postoperative care;
- delayed diagnosis/treatment;
- wrongful birth;
- failure to provide medical assistance.
The patients are entitled to seek compensation for:
- pain and suffering;
- violation of bodily integrity damages;
- mental distress damages.
The most common types of violation of personal integrity include permanent or temporary damage of a limb, permanent or temporary damage of a bodily organ or part of the body and physical pain and suffering only.
The patient has the right to file a compensation claim for sustained material and nonmaterial damages against the medical professional and/or the healthcare establishment where the medical professional is employed and has caused the damage.
Direct claim against the insurer of the healthcare facility
It is important to be aware that there is another possibility for a patient to be awarded compensation for damages sustained – to file a compensation claim with the insurer under professional liability insurance coverage for persons perusing the medical occupation (the medical professionals).
The insurance covers the professional liability of insured natural persons – medical professionals for damages caused by them to third parties as a result of pursuing the medical occupation in or on behalf of a healthcare facility.
Up to the insured amount, the insurance covers material and non-material damages for disability or death resulting from the negligent medical treatment of a patient in or in relation to exercising the medical profession by an insured healthcare professional on the territory of the Republic of Bulgaria, as well as the related expenses, interest, and costs for court or out-of-court settlement of the claim under the Insurance Code.
As used in this overview, the term “medical professionals” covers a variety of medical staff: doctors, doctors of dental medicine, physiotherapists, nurses, midwives, dental technicians, etc. The term “medical facility” also has a broad meaning and covers hospitals, primary healthcare providers and specialist outpatient clinics, medical centers, laboratories, emergency care units, hospices, centers for mental health services, etc.
This coverage is required by law. The insurance contract is concluded for a minimum policy period of one year and the coverage must be renewed upon expiration. Under law, all healthcare facilities are required to take out professional liability insurance for medical staff at their own expense.
Limit of liability
Insurance limits (limit of liability) are established under law and are based on the type of activity and the risk category a medical professional is assigned to, as provided for under the Mandatory Coverage of Persons Pursuing a Medical Occupation Ordinance, adopted by the Council of Ministers on the grounds of art. 189, para. 2 of the Health Act and promulgated in the State Gazette, issue 80 of 28.09.2018.
The annual insurance limits of one person, for one event, as per the annex to the respective act, are as follows: BGN 30,000; BGN 60,000 and BGN 90,000 for first, second, and third risk category medical professionals in outpatient care and BGN 50,000, BGN 100,000, and BGN 150,000 for first, second, and third risk category medical professionals in primary care.
Grounds for claims settlement
When a case arises, it is a good idea to check whether the healthcare facility has actually taken out a professional liability coverage and the medical professional whose acts or omissions have caused the patient harm is an insured person. If an insurance contract has been concluded, the insurer must be notified of the event and then a written claim must be filed, along with evidence of the damage sustained.
It is important to read the General and Special Conditions of the insurance policy as well as whether it was valid and active at the time of the damage and whether it covers the damages sustained. It is possible that the insurance contains a clause under which the insurer is liable to pay damages if the harmful event occurred within the term of the insurance contract, regardless of when a compensation claim has been made within the statutory 5-year limitation period (the so-called occurrence clause). Another option is that the insurance contains a clause under which the insurer is liable to pay damages if the harmful event occurred within the term of the contract (or with effect from a specified prior/retroactive date) and the claim for compensation has been filed within the same period (the so-called claims made clause).
This is why it is important to examine the specifics of each negligence case in advance. Then it is a matter of judgment whether to file a direct claim with the insurer and/or file a claim against the healthcare facility as the person liable for damages caused by medical staff and/or the medical professional responsible for the damage sustained.
Each case of medical negligence has specifics. We recommend that patients who suffered damages and intend to take the necessary steps to claim compensation for medical negligence first seek legal advice and assistance by a medical malpractice or insurance lawyer.
This article has been prepared for the purposes of general information only and does not constitute legal advice with respect to any particular subject or situation. For specific legal advice you should contact an attorney-at-law. Stoeva, Tchompalov & Znepolski is not responsible for any legal action undertaken on the basis of the information contained herein.