Is the estate of a doctor who has a third party liability insurance policy at risk from the patient's claims?

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Piotr Kłodziński|
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What is liability insurance for a doctor? (if the person does not practice only under an employment contract)

 

If a patient suffers damage as a result of a culpable act or omission of a doctor, he or she has the right to demand financial compensation from the doctor for the damage suffered (Article 415 et seq. of the Civil Code - hereinafter referred to as the Civil Code, Article 4 of the Act on Patient Rights and the Ombudsman for Patients' Rights). .

Therefore, incorrect diagnosis, prevention and therapy, as well as failure to attempt to examine or treat the patient when necessary, may result in various claims filed against the doctor.

However, we must make a reservation here that this liability primarily applies to the doctor if he did not perform activities under the employment contract and if the damage was caused (which is even more obvious) unintentionally. Sometimes the patient's claims are less, sometimes more justified. The key thing, however, is this in such a situation, the doctor is, as a rule, liable with all his assets.

This means that if the case is lost in court, if the doctor does not voluntarily provide the benefits awarded to the patient, the court bailiff will be able to carry out enforcement against almost all things and property rights included in the doctor's estate, with a slight omission of those that are specifically covered by the provisions of the law. exclude this execution. For example, the subject of bailiff enforcement (court enforcement) may be remuneration for work or remuneration for performing a profession in the so-called contract in a hospital, outpatient clinic or clinic, or income from a medical practice (professional practice) run in one's own name. The unpleasantness associated with such enforcement includes the seizure of receivables from a bank account (common: "the bailiff entered my account"), and, as a last resort, even the seizure of the doctor's apartment or house.

Doctor's liability insurance is mandatory in the case of a doctor running his own professional practice or a group medical practice (Article 18(1)(5) and Article 25(1) and (2) of the Act on Medical Activities). The key thing, however, is that for doctors, in addition to compulsory insurance, there is also a lot of additional insurance available on the market.

As a result of concluding a third party liability insurance contract, the insurance company assumes the obligation to pay compensation specified in the contract for damage caused to patients to whom the policyholder or the insured person (i.e. in the case described - the doctor) is liable for the damage - Art. 822 § 1 CC. This is a convenient solution both for the doctor himself (he is more confident that the consequences of possible medical errors or unintentional negligence will not ruin him financially), but also for the patient - for two reasons.

Firstly, the insurer's assets, for obvious reasons, are usually larger than the assets of an average person (individual), even a wealthy one, so the injured party has a greater chance that he will not only be formally entitled to some benefits, but there is also a greater chance of actually obtaining full satisfaction. their claims. Secondly, the injured patient does not have to conduct a tedious dispute with the doctor in court and then face a bailiff's execution against him. The provision of Art. 822 § 4 of the Civil Code provides that a person entitled to compensation may immediately - if he/she wishes to do so - pursue a claim directly from the insurer. As insurance companies professionally deal with the so-called claims settlement, thanks to this solution there is a chance that already at the stage of correspondence exchanged between the facility and the injured party, the patient will be able to obtain a satisfactory amount of money.

 

When will a third party liability insurance contract not protect a doctor?

 

Despite the undoubted benefits of concluding a liability insurance contract, after concluding the policy, the doctor cannot feel completely untouchable when confronted with the patient's claims.

First of all, it should be noted that the above-mentioned Art. 822 § 4 of the Civil Code does not mean that the injured patient cannot submit his claims against the doctor. This provision only gives the injured patient a wider choice. However, this problem is not particularly important for the insured doctor, because if he loses the case, he will be able to demand from the insurance company a refund of the amount paid to the patient as compensation for the damage.

The real threats for the doctor result from the fact that there are legal limitations on the insurer's obligations under the performance of the third party liability insurance contract - there are several of them.

Firstly, each third party liability insurance contract (or General Terms and Conditions of Insurance constituting a binding supplement to the contract - hereinafter referred to as the General Terms and Conditions of Insurance) specifies the amount limit (guaranteed sum) of the insurance company's liability towards potential injured parties (in the case described - patients). It is worth noting that in the case of doctors performing medical activities on their own account, the minimum level of the mentioned indemnity sum is set by legal standards. When it comes to claims of a single patient injured as a result of one event, the regulations set the above amount at EUR 75,000. However, it is also worth paying attention to the second limit of EUR 350,000. This refers to the sum of claims resulting from all claims reported in connection with events (e.g. medical errors) that occurred during a given insurance period (the given values refer to periods of a maximum of one year, even if the third party liability insurance contract itself was concluded for a longer period). Such claims may arise even after many years (see Article 4421 § 3 of the Civil Code). The insurer may refer to any of the above amounts - in practice, the one that is more favorable to it in a given situation.

As a result of exhaustion of the guarantee sum, the insured doctor must bear full liability from his/her assets - as described at the beginning of this article (Article 7 of the Compulsory Insurance Act).

It may seem that the presented levels of guaranteed sums are significant, taking into account the high exchange rate of the euro (the average exchange rate announced by the National Bank of Poland for the first time in the year of concluding the third party liability insurance contract applies). However, they are not necessarily able to provide sufficient protection to a doctor conducting medical activity on his own behalf. It must be remembered that the provisions of the Civil Code provide not only for the patient to be able to demand one-off compensation in connection with incorrect provision of medical assistance (e.g. loss of earnings, cost of hospital stay, cost of purchasing drugs and specialized equipment) and one-off compensation for the harm suffered (e.g. incl. pain, fear, stress.)

Pursuant to Art. 444 § 2 of the Civil Code, it is even conceivable that the injured patient may be obliged to pay an annuity (or three separate annuities - there are different opinions among lawyers on this matter), the amount of which is influenced by three circumstances:

– loss of earning potential that the patient had at the time of the health damage;

– possible additional needs of the injured patient that will persist for a longer time after the medical error (e.g. the cost of medications already taken on a permanent basis, the cost of additional care and rehabilitation);

– the injured patient's loss of the opportunity to gain experience and increasingly higher qualifications in his profession, which in the future would translate into higher earning potential and other "success prospects for the future" (in financial terms, apart from standard employment, especially if the injured patient pursued artistic activities).

In extreme cases, when the possibility of the disappearance of the circumstances justifying the granting of a pension in the future is unlikely, it may even be necessary to pay a pension to the injured patient for the rest of his life. As it is easy to predict, after several or a dozen or so years of such a condition, it may turn out that the pension granted to the patient has exhausted the guaranteed amount, which means that the burden of continuing to pay the pension to the injured patient will fall entirely on the doctor.

Please remember that the above-mentioned guarantee amounts are the minimum level required by law in relation to compulsory third party liability insurance. However, the Act does not prohibit concluding insurance contracts in which the insuring physician agrees with the insurance company a higher sum insured. Then, however, he should remember that the insurer offers an additional, higher premium for each period of insurance coverage.

However, when it comes to a doctor who does not run his own professional practice, he is not obliged to conclude a liability insurance contract. However, it was not prohibited either. Then the level of the guarantee sum is determined by the parties to the contract and there is no minimum ceiling.

It would seem that a contract doctor has nothing to fear. After all, his professional activities should be covered by third party liability insurance for those who run a hospital, clinic, clinic, etc. However, doubts have been raised about this issue in the legal literature. Even if they are rejected, it must be remembered that a contract doctor does not benefit from employee protection provided for in the Labor Code, and therefore may be the addressee of the patient's claims. Moreover, even if the injured party does not seek payment directly from the doctor, there is still a risk of exhausting the guarantee amount resulting from the third party liability insurance contract protecting the employer. Importantly, the minimum levels of these amounts required by law, even when running a large hospital serving a large number of patients, have been set at a slightly higher level than in relation to independent medical practices. These are EUR 100,000 for a single event and EUR 500,000 for the sum of claims for a maximum of one year of insurance.

What happens after the insured amount of the liability insurance policy protecting the "employer" has been exhausted? The patient then has to submit his/her demands to the doctor or medical entity that employs him/her. Even if the injured party decides to seek payment only from the person running the health care facility, a contract doctor (i.e. not employed under an employment contract) should take into account that the employer may submit a claim against him for reimbursement of all or part of the compensation paid to the injured party. to the patient. It is therefore worth considering the possibility of "purchasing" voluntary third party liability insurance ensuring a higher level of protection in such cases.

The limit in the form of the insured sum is not the only legal problem that may affect a doctor using third party liability insurance.

The third party liability insurance contract and the General Terms and Conditions must specify all events whose occurrence results in the insurance company's obligation to pay compensation (insured accidents covered by the so-called insurance protection). If an event is not mentioned in the above documents, the insurance company may refuse to pay, even if the doctor bears civil liability towards the patient and the guarantee sum has not been exhausted.

The same effect is caused by the so-called exclusion of liability of the insurance company. These are the provisions of the third party liability insurance contract or the general terms and conditions, which provide that the insurance company is not obliged to pay compensation in certain circumstances, even if the accident itself is covered by insurance.

The above problems concern primarily contract doctors interested in purchasing a completely voluntary liability insurance policy and doctors conducting independent professional practice in the part of the contract that would go beyond the minimum required by law.

The last caveat is particularly important for doctors performing plastic surgery or aesthetic medicine procedures. In the case of these services, the law only requires that compulsory insurance of medical activities covers damages that result from medical interventions undertaken due to congenital defects, injuries and diseases or are the result of procedures necessary to treat a congenital defect, injury or disease. Therefore, in such a situation, it is worth considering taking out an additional insurance policy covering an extended range of insurance risks. And if in doubt, consult these issues with a lawyer.

It is also worth remembering that the part of the contract that concerns liability for non-medical activities, i.e. in connection with the violation of some of the patient's rights, should be treated as voluntary third party liability insurance coverage. The relevant regulation specifying the scope of compulsory third-party liability insurance in medical activities states that compulsory insurance coverage extends only to damage resulting from the provision of health services or the unlawful omission to provide health services.

To conclude the topic of contractual limitations of voluntary insurance coverage, it should be noted that insurers sometimes strive to stipulate the so-called deductible or the insured's own contribution. Depending on the content of a specific contract, this may lead to different legal consequences. For example, an insurance company may strive to ensure that its obligation to pay compensation is limited to the obligation to pay 90 % the amount due. The remaining part of the benefit is then borne by the insured person. The franchise cannot be subject to any restrictions regarding compulsory insurance.

Insurance recourse

Pursuant to Art. 11 section 3 of the Act on Compulsory Insurance, the insurance company may demand from the insured doctor conducting an independent professional practice the refund of compensation paid to the injured patient. On the one hand, the fact that the regulation does not apply to every case speaks to the doctor's advantage. The regulation requires that there has been gross negligence on the part of the doctor or a member of his staff (e.g. in dental offices - a dental assistant). Here we ignore the problem of acting after the use of alcohol or other intoxicating substances. On the other hand, however, in the jurisprudence of the Supreme Court (judgment of February 10, 2010, V CSK 287/09) the view was formulated that "clumsiness and inattention to the procedure performed may also determine the physician's guilt if, objectively assessed, they should not have occurred in specific circumstances." circumstances. Therefore, it is not about requiring a doctor to be more diligent than average, but about a high level of average care every doctor as professional diligence.” Therefore, scientific legal literature has noted that in cases involving professionals, it is much easier for the insurance company to prove gross negligence of the insured person (in the case described - the doctor) than in other cases.

With regard to the doctor's voluntary liability insurance, the described problem depends to a greater extent on the content of the contract and the General Terms and Conditions. By default, if the above-mentioned documents do not address the analyzed issue, in the event of causing damage to the patient intentionally or as a result of gross negligence, the insurer does not have to pay compensation at all (except in extreme cases, when the so-called considerations of equity do not allow one to ignore the patient's damage). . To put it colloquially, then the doctor's liability insurance policy will not apply, as if it had not existed at all. However, the insurance contract, especially in the case of third party liability insurance, as well as the general terms and conditions, may provide for solutions that are more favorable for the doctor (Article 827 of the Civil Code). Therefore, their thorough legal analysis is very important and should be commissioned to a specialized law firm when concluding or extending the contract.

How can a lawyer help?

A lawyer specializing in providing legal assistance to doctors can help doctors in the described cases at many stages and in various ways.

Before an insurance contract is concluded, a lawyer can help the doctor assess the legal consequences of purchasing a specific additional liability insurance policy. In particular, it can conduct (and, of course, present its results) a professional analysis of current court decisions in compensation cases in connection with: with irregularities occurring in diagnosis, advice on prevention and, of course, treatment, as well as in matters of disputes between insured persons and insurance companies.

After a patient suffers damage, a lawyer may represent the doctor in disputes with the patient himself, but also in possible settlements with the insurance company, and in the case of contract doctors - with the entity under which they performed the procedures. This representation will aim to attempt to effectively invoke the provisions of legal provisions allowing the doctor to exempt himself from civil liability in general or at least to limit the amounts due to the patient to be paid by the doctor.

A lawyer's activities may concern more than just legal proceedings. In practice, it is also very important and common to settle the matter amicably, ending with a settlement satisfactory to all parties. A lawyer representing the doctor's interests may participate in negotiations preceding the conclusion of the settlement. Negotiations do not necessarily have to take the form of personal meetings, especially if the parties are separated by long distances or want to avoid escalating emotions. Correspondence, "online meetings" and other means of communication convenient for the parties are also allowed.

Importantly, as our experience shows, a lawyer's carefully prepared argumentation at the pre-trial stage often turns out to be so effective that the other side accepts the position favorable to the doctor and waives further claims.

Authors: Dr. Damian Kaczan, r.pr. Piotr Kłodziński

Top sources:

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Civil Code. Comment, ed. M. Załucki, Warsaw 2023

  1. Krajewski, Insurance contract.Art. 805-834 CC. Comment, Warsaw 2016
  2. Orlicki, Mandatory insurance, Warsaw 2011
  3. Orlicki, Insurance contract, Warsaw 2002

Medical Law System. Volume 5. Private law liability, ed. E. Bagińska, Warszawa 2021

Private Law System. Volume 6. Law of obligations – general part, ed. A. Olejniczak, Warsaw 2023

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