<\/p>\n
<\/p>\n In the event that a patient suffers harm as a result of a doctor's culpable action or omission, they gain the right to demand financial compensation from the medical professional for the damage suffered (Art. 415 et seq. of the Civil Code \u2013 hereinafter CC, Art. 4 of the Act on Patient Rights and the Patient Ombudsman). Therefore, both incorrectly conducted diagnostics, prophylaxis and therapy, as well as the failure to attempt to examine or treat a patient when it is necessary, can result in various claims being brought against the doctor. However, we must add a caveat here that this liability primarily affects a doctor if they were not acting under an employment contract and if the damages were caused (which is even more obvious) unintentionally. Sometimes a patient's claims are more, sometimes less justified. The crucial point, however, is that in such a situation, the doctor is, as a rule, liable with all his assets.<\/strong><\/p>\n This means that in the event of losing a case in court, if the doctor does not voluntarily fulfil the payments awarded to the patient, a court bailiff will be able to enforce against almost all assets and property rights belonging to the doctor, with only a few exceptions that are currently excluded from such enforcement by law. For example, items that can be subject to bailiff enforcement (court enforcement) include salary payments or remuneration for performing professional duties under a contract with a hospital, clinic, or practice, as well as income derived from running a private medical practice.<\/p>\n Among the unpleasant consequences of such an execution is the seizure of funds from a bank account (colloquially, \"the bailiff has seized my account\"), and in extreme cases, even the seizure of a doctor's flat or house. Medical malpractice insurance is mandatory for doctors running their own professional practice or a group medical practice (Art. 18(1)(5) and Art. 25(1) and (2) of the Act on Medical Activities). However, the key point is that for doctors, in addition to mandatory insurance, there is also a wide range of additional insurance policies available on the market. As a result of concluding a medical malpractice insurance contract, the insurer undertakes to pay the compensation specified in the contract for damages caused to patients for whom the insured or the insurer (i.e. in the described case \u2013 the doctor) is liable for the damage \u2013 Art. 822 \u00a7 1 of the Civil Code.<\/p>\n This is a convenient solution both for the doctor themselves (they are more assured that the consequences of potential medical errors or unintentional negligence will not ruin them financially), but also for the patient \u2013 and for two reasons. Firstly, the insurer's assets are, for obvious reasons, usually greater than the assets of an average person (natural person), even a wealthy one, so the injured party has a greater chance that not only will they formally be entitled to some benefits, but there is also a greater chance of actually obtaining full satisfaction of their claims. Secondly, the injured patient does not have to engage in a tedious court dispute with the doctor, and then enforce it through bailiffs. Article 822 \u00a7 4 of the Civil Code provides that a person entitled to compensation may \u2013 if they wish \u2013 immediately pursue the claim directly from the insurer. As insurance companies professionally deal with so-called claims settlement, thanks to this solution, there is a chance that already at the stage of correspondence exchanged between the company and the injured party, the patient will be able to obtain a sum of money that satisfies them.<\/p>\n Despite the undisputed benefits of concluding a civil liability insurance policy \u2013 after purchasing the policy, the doctor cannot feel completely untouchable when facing a patient's claim. First and foremost, it should be noted that the aforementioned Article 822 \u00a7 4 of the Civil Code does not mean that the injured patient cannot bring a claim against the doctor. This provision merely gives the injured patient a wider choice. However, this issue is not particularly significant for the insured doctor, because if they lose the case, they will be able to demand reimbursement from the insurance company of the amount paid to the patient as compensation for damages. The real risks for the doctor arise from the fact that there are legal limitations on the insurer's obligations within the scope of performing the civil liability insurance contract \u2013 there are several of them.<\/p>\n First, every third-party liability insurance agreement (or General Terms and Conditions of Insurance, which supplement the agreement and are binding on the parties \u2013 hereinafter referred to as the GTCI) specifies the monetary limit (sum insured) of the insurer's liability towards potential injured parties (in the described case \u2013 patients). It is worth noting that for doctors carrying out medical activities on their own account, the minimum level of the aforementioned sum insured is determined by legal regulations. With regard to claims by a single patient injured as a result of a single incident, the regulations set this amount at \u20ac75,000. However, it is also worth paying attention to the second limit in the form of a sum of \u20ac350,000. This refers to the total of claims arising from all claims reported in connection with incidents (e.g., medical errors) that occurred during a specific insurance period (the values given relate to periods of a maximum of one year, even if the third-party liability insurance agreement itself was concluded for a longer period).<\/p>\n Such claims can arise even many years later (cf. Art. 4421 <\/sup>\u00a7 3KC). The insurer is permitted to rely on any of the above sums \u2013 in practice, the one that is more advantageous for them in a given situation. The consequence of exhausting the sum insured is that the insured doctor must bear full liability from their own assets \u2013 as described at the beginning of this article (Art. 7 of the Act on Compulsory Insurance). It may seem that the presented levels of sums insured are significant, considering 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 the OC insurance contract was concluded applies). However, they are not necessarily able to provide sufficient protection for a doctor practising medicine in their own name. It must be remembered that the Civil Code provisions anticipate not only the possibility of a patient demanding lump-sum compensation in connection with improperly provided medical assistance (e.g., loss of earnings, cost of hospital stay, cost of purchasing medicines and specialized equipment) and lump-sum satisfaction for suffered harm (including pain, fear, stress).<\/p>\n Pursuant to Art. 444 \u00a7 2 of the Civil Code, it is even conceivable that the injured patient may be awarded an annuity (or three separate annuities \u2013 there are differing legal opinions on this matter), the amount of which is influenced by three circumstances:\n- loss of earning capacity that the patient had at the time of suffering the injury;\n- any additional needs of the injured patient that will persist for a longer period after the medical error (e.g., the cost of permanently taken medication, the cost of additional care and rehabilitation);\n- the injured patient's loss of the opportunity to gain experience and increasingly higher qualifications in their profession, which would translate into higher earning potential and other \"prospects of future success\" (in a financial dimension beyond standard employment, especially if the injured patient was engaged in artistic activities).<\/p>\n In extreme cases, where the circumstances justifying the award of a pension are unlikely to cease in the future, it may even be necessary to pay the injured patient a pension for the rest of their life. As can therefore be easily foreseen, after several to a dozen or so years of such a condition, it may turn out that the pension awarded to the patient has exhausted the sum insured, which will result in the burden of further pension payments to the injured patient falling entirely on the doctor. It should be remembered that the sums insured mentioned above are the minimum level required by law for mandatory third-party liability insurance. However, the law does not prohibit the conclusion of insurance policies in which the doctor taking out the insurance agrees with the insurance company on a higher sum insured.<\/p>\n However, one should then remember that the insurer proposes an additional, higher premium for each insurance coverage period. As for a doctor not running their own professional practice, they are not obliged to enter into a civil liability insurance contract. However, this has not been prohibited either. In such a case, the level of the sum insured is determined by the parties to the contract and there is no minimum cap. It might seem that a contract doctor has nothing to fear. After all, the performance of their professional duties should be covered by the civil liability insurance of the hospital, clinic, practice, etc. However, doubts have been raised on this matter in legal literature. Even if these are dismissed, it must be remembered that a contract doctor does not benefit from employee protection provided for by the Labour Code, and therefore may be subject to patient claims. Furthermore, even if the injured party does not seek payment directly from the doctor, the risk of exhausting the sum insured under the civil liability insurance protecting the employer still remains.<\/p>\n Crucially, the minimum levels of these amounts required by law, even when a large hospital serving many patients is operating, have been set at only slightly higher levels than for independent medical practices. These are \u20ac100,000 for a single incident and \u20ac500,000 for the sum of claims for a maximum annual insurance period.<\/p>\n 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.<\/p>\n The limit in the form of a guaranteed sum is not the only legal problem that can affect a doctor using a liability insurance policy. The liability insurance agreement and the General Terms and Conditions must specify all events whose occurrence leads to the insurer's obligation to pay compensation (insured events covered by so-called insurance cover). If any event is not mentioned in the above documents, the insurer may refuse payment, even if the doctor is civilly liable to the patient and the guaranteed sum has not been exhausted. The same effect is caused by so-called exclusions of the insurer's liability. These are provisions of the liability insurance agreement or the General Terms and Conditions, which stipulate that the insurer is not obliged to pay compensation in certain circumstances, even if the event itself was covered by insurance.<\/p>\n The above issues primarily concern contracted doctors interested in purchasing a completely voluntary liability insurance policy, and doctors running an independent professional practice, regarding the part of the agreement that would go beyond the legally required minimum. The latter reservation is particularly important for doctors performing plastic surgery or aesthetic medicine procedures. For these services, the law only requires that compulsory medical practice insurance covers damages resulting from medical interventions undertaken due to congenital defects, injuries, and diseases, or as a consequence of procedures necessary for the treatment of a congenital defect, injury, or disease. It is therefore worth considering concluding an additional insurance policy in such situations, covering an extended scope of insurable risks.<\/p>\n And in case of doubt, consult these matters with a lawyer. It is also worth remembering that the part of the contract concerning liability for non-medical activities, i.e. in connection with the breach of certain patient rights, should be treated as voluntary compulsory civil liability insurance. This is because the relevant regulation specifying the scope of mandatory compulsory civil liability insurance in healthcare activities states that the obligatory insurance cover extends only to damages resulting from the provision of health services or unlawful omission of the provision of health services.<\/p>\n 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.<\/p>\n Under Article 11(3) of the Compulsory Insurance Act, an insurance undertaking may demand reimbursement of compensation paid to an injured patient from an insured doctor practising independently. On the doctor's behalf, one may argue that the regulation in question does not apply in every case. The provision requires gross negligence on the part of the doctor themselves or a member of their staff (e.g., in dental practices \u2013 a dental assistant). We shall disregard for now the issue of acting under the influence of alcohol or other intoxicants.<\/p>\n On the other hand, in the case law of the Supreme Court (judgment of 10 February 2010, V CSK 287\/09), the view was formulated that \"the doctor's fault may also be determined by the clumsiness and inattention during a procedure, if, objectively assessed, they should not have occurred in the specific circumstances. Therefore, it is not about requiring the doctor to exercise a higher than average degree of diligence, but about a high level of average care<\/strong> Every doctor as professional diligence. Consequently, it has been noted in legal scholarship that in cases involving professionals, insurers find it significantly easier to prove the insured's (in the case described \u2013 the doctor's) gross negligence than in other cases. With regard to voluntary medical malpractice insurance, the problem described depends to a greater extent on the content of the contract and the General Insurance Conditions.<\/p>\n By default, if the mentioned documents do not address the analysed issue, then in the event of harm caused to the patient intentionally or through gross negligence, the insurer does not have to pay any compensation at all (except for extreme cases where so-called equity considerations do not allow one to ignore the patient's detriment). In layman's terms, the doctor's liability insurance policy would not apply, as if it did not exist. However, the insurance contract, especially in the case of liability insurance, as well as the General Terms and Conditions of Insurance, may provide for solutions more favourable to the doctor (Art. 827 of the Civil Code). Therefore, their thorough legal analysis is very important and should be commissioned to a specialised law firm when concluding or extending it.<\/p>\n A solicitor specialising in providing legal assistance to doctors can help medical professionals in the cases described at various stages and in various ways. Before an insurance contract is concluded, a lawyer can help a doctor assess the legal implications of taking out a specific supplementary third-party liability policy. In particular, they can carry out (and, of course, present the results of) a professional analysis of current case law in claims for damages relating to errors in diagnosis, advice on prevention and, of course, treatment, as well as in disputes between policyholders and insurance companies. Once a patient has suffered harm, a lawyer can represent the doctor in disputes with the patient themselves, but also in any potential settlements with the insurance company, and in the case of contract doctors \u2013 with the organisation under which they carried out the procedures. The aim of this representation will be to attempt to effectively invoke the provisions of the law that allow the doctor to be exempt from civil liability altogether, or at least to limit the amount the doctor is required to pay the patient. A lawyer\u2019s activities may extend beyond proceedings within the context of a court dispute. In practice, it is also very important and common to resolve a case amicably, resulting in a settlement that satisfies all parties. A lawyer representing the doctor\u2019s interests may take part in the negotiations leading up to the conclusion of such a settlement. These negotiations do not necessarily have to take the form of face-to-face meetings, particularly if the parties are geographically distant or wish to avoid escalating tensions. Correspondence, \u2018online meetings\u2019 and other means of communication convenient for the parties are also permitted. Importantly, as our experience shows, a lawyer\u2019s thoroughly prepared legal arguments at the pre-trial stage often prove so effective that the other party accepts a position favourable to the doctor and withdraws any further claims.<\/p>\n <\/p>\n\ud83d\udccbContents<\/summary>\n
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What is liability insurance for a doctor? (if the person does not practice only under an employment contract)<\/strong><\/h2>\n
When will a third party liability insurance contract not protect a doctor?<\/strong><\/h2>\n
Insurance recourse<\/strong><\/h2>\n
How can a lawyer help?<\/strong><\/h2>\n