Medical liability
Liability may also exist for medical ‘errors made by a doctor. Doctors are liable for any damage suffered by a patient as the result of the doctor’s failure to respect his or her obligations stated in the treatment agreement.
It is of course very sad when you undergo a medical procedure that turns out differently than expected, often with (serious) permanent injuries as a result. How do you deal with this and what should you do to get compensation for your damage?
It is immediately worth noting that medical liability is not that simple. We want to make it immediately clear that the picture that prevails about medical liability cases is generally very different from how it is experienced in practice. We’ll say it straight away: expectations are often high at first, but in many cases a case turns out to be unfeasible. There are various problems in the medical liability process, both in the legal context of the medical domain (what is a medical error), the enormous burden of the process on a victim and the functioning of the insurance company.
It is therefore important that you choose a specialized lawyer who has extensive experience in the field of medical liability. After all, it comes down to a correct legal qualification, in which procedural law of evidence also plays a major role. Unfortunately, we see all too often statements passing by with the wrong legal approach, too little knowledge and experience of the law, that a case is there for unfeasible and a victim is left with his damage.
At AVB Law we are specialized in medical liability
Please do not hesitate to contact us for this matter.
But why is medical liability usually so difficult?
First of all, this is caused by the fact that the doctor has a best effort obligation, which arises from the treatment agreement from article 7:446 BW. In fact, this means that a doctor is only liable if he has not acted in accordance with the care that can be expected from a reasonably competent and reasonable acting colleague under comparable circumstances. This is therefore very casuistic and a complication for example is not an error, but an undesirable consequence of the procedure. Prescribed protocols play a major role in how to fill in this “professional standard”. The medical file is required to establish that there has actually been a medical error. Our first tip is therefore to immediately request a copy of the entire medical file.
However, we – as a lawyer – cannot clear the medical error up for you. After all, we have a legal education and no medical education. AVB Law employs excellent medical advisors who can determine in your case whether or not there is a medical error, and this medical advisor has to be paid to assess the medical file. This amount can only be reimbursed if medical liability has been established. Depending on the size of the medical file, these are easily high costs. So keep in mind that to determine the medical error, the costs of the medical advisor must be paid.
Then the legal framework is discussed: whether the doctor has acted properly in the given circumstances. This is and always will be a difficult question.