Medical accidents

St.John hospital , Brugge

With regard to medical accidents, the legislation has been amended, rather to protect the victims, and on the other hand without making it completely impossible to practice as a doctor. A bad outcome does not always implicate guilt.

A hospital

Can be liable for inadequate organization (e.g. lack of hygiene, lack of sufficient and competent staff, no careful maintenance of patient files, ...) (e.g. hospital responsibility because a physician assistant had incorrectly inserted a probe into a young anorexia patient, fluid in the lungs and she died (https://www.vrt.be/nl/2016/12/14/uz_gent ) Or hospital responsibility for absence of doctor on duty, because this had already happened earlier (Liège 8.6. 2017, T. Gez. R. 2017-18, 327)

Hospital staff can also make mistakes (which can then be recovered from the employer) (eg lack of guidance for a patient who falls from a scanner table; eg Rb. Hasselt, 1.10.2015).

Since 1.1.2020, the hospital law obliges hospitals to cooperate. 25 Regional care networks will be created with their own loco-regional care assignments (general (common surgery and day clinic) and specialized, and appointments will have to be made for the specialized, who must have their own administrative body with a network-level manager, a network chief doctor and a medical network council.

The law does not provide for any new responsibility, although the law provides that for the patient the "continuity of care" of the patient must be guaranteed, and this is first the responsibility of the network administrator or the college of network chief doctors. (art. 22/1 Hospital Act).[1]

The doctor

Commits a mistake due to a lack of careful action, which concerns diagnosis, treatment and aftercare.

Patients also have the right to information and must be protected against the withholding of data..

Certainly when physical or moral damage is subsequently established, this can have far-reaching consequences. After all, a doctor is obliged to inform his patient sufficiently about all possible consequences of an action he wishes to perform. Then The patient must agree to the action proposed by the doctor..

The most difficult thing is when the patient proves that they have not been sufficiently informed. Traditionally, the burden of proof is placed on the patient, but due to a recent judgment (25 June 2015) of the Court of Cassation, the reasoning can be made that the doctor must prove that he has provided sufficient information (see article).

Even when a doctor makes a diagnosis, he must inform the patient. He is entitled to a timely diagnosis (cf. the case in which a doctor was convicted because he had not made all efforts to inform the patient of a malignant melanoma -Br.10.9.2014, magazine. Health Law 2019, page 262 ).

Existing legislation requires for a physician responsibility, the proof of error, and a certain causal relationship (the sine qua non test). This is often difficult. A loss of opportunity can be more easily demonstrated. It no longer even needs to be explicitly requested, the judge can assert it ex officio, as long as the rights of defense are not disregarded.[2]

The forthcoming legislation (Civil law) provides for a more nuanced form of responsibility ("If several persons participate in the same activity that caused the damage, these persons are liable in solidum, even if it is not clear who caused the damage" ).

Abnormal serious damage is now compensated through the intervention of a fund

Both in the event of liability of the care provider (art. 4 law medical accidents.), and a medical accident without liability.

In addition, there must have been an active intervention by the healthcare provider.

The fund can intervene in the event of a dispute of responsibility by the professional insurance, or if there is no or insufficient insurance.

If without liability, the damage must be "abnormal". This is when the damage should not have occurred, taking into account the current state of science, the condition of the patient and his objectively predictable evolution. Please note, this does not mean that every damage (eg as a result of infection) must be compensated. Abnormal damage is defined by the law of 31 March 2010 as damage that should not have occurred regarding the current state of science. Was the damage avoidable or not, that is the question. The damage development must be reasonably unforeseeable. The Fund itself applies the strict criterion for this that such damage occurs in less than 0.1% of cases. The Courts are less strict and accept 1% sometimes 2%. It is not enough that the complication is described in the medical literature and it is known that there is no abnormal damage.[3]

So there is certainly no automatic compensation, far from it. Improvements to that effect are suggested by the legislator. [4] Justice is developing slowly and often in a favorable sense.

For example, the Antwerp Court of Appeal ruled on 21.2.2018 that if serious damage is not completely excluded in advance (but a minimal risk), that this also qualifies for compensation. The use of medication that causes such serious consequences should therefore also be reimbursed by the Fund.

The Court of Cassation ruled on 7.10.2019[5] that even temporary partial incapacity for work can already be regarded as "sufficiently serious damage".

Nurses too

Responsibility (if not self-employed, then taken care of in the event of minor error by the hospital where he / she works, or by the doctor on whose instructions he / she acted. As an employee, he / she can only be held personally responsible for deliberate, serious or recurrent minor fault).

Proper maintenance of the nursing record, supervision of the patient, and the careful execution of medical care are all examples of possible shortcomings.