Medical malpractice part 1: basic legal principles

Medical malpractice part 1: basic legal principles

You were the victim of a medical error? Of course, we understand your concerns.

In the following three articles that appear on our website, we would like to give you the most important things about liability in a medical malpractice case. Hopefully we can help you somewhat with this. Of course, we are also available for an initial free legal consultation. Please contact us via our website, by phone: 03/369.28.00 or by e-mail: info@bannister.be.

With this first article, we would like to give a brief overview of the legal rules where we would like to answer the questions: what is covered by medical malpractice? What is an injury? When can I sue a health care provider? When does my claim expire?

In the next two articles, we will discuss evidence in medical malpractice as well as the importance of legal expenses insurance.

Medical error

If as a result of (medical) treatment the patient suffers damage, there may be a (medical) error for which you can sue the treating health care provider or the hospital for compensation of your damages.

You should not think exclusively of the strictly medical professions, but this can also result from treatment at, for example, a beautician or a paramedical profession such as a podiatrist.

A first important distinction to be made is whether the (medical) error falls under the rules of the extra-contractual liability or contractual liability. This depends on the specific treatment that was performed and the legal relationship that arose from it.

A few examples will clarify a few things:

• Contractual:

1. A rhinoplasty at an aesthetic doctor's office;
2. A facial at a beautician;
3. a sterilization.

• Extra-contractual:

1. an unconscious patient being taken to a hospital emergency department;
2. a forced admission.

It is important to determine whether there is a contractual or non-contractual relationship such that it can be judged under which scope the specific claim should be classified. This is important to determine which legal rules apply

Damage

The victim will have to prove that he/she actually suffered damages as a result of the medical error. Damages can be divided into physical and material.

A report from a physician will be required for physical damages to be assessed. Physical damages will be assessed as temporary and/or permanent incapacity broken down into personal, domestic and economic incapacity.

For serious injuries, additional items will be provided including third party assistance, possibly providing for the cost of a prosthesis, providing for the cost of treatment at a physiotherapist, etc.

In addition to physical damage, there may also be property damage. These include medical expenses: medication, ambulance to hospital,..., relocation costs, and so on.

Our next article on evidence will delve deeper into what documents are important in this regard.

Causal relationship

The victim will have to prove that the medical error led directly to the injury. There must be a causal link between the error and the harm you suffered.

The injury occurred solely as a result of the medical error and, in other words, may not result from another cause unrelated to the medical error.

Statute of limitations

The statute of limitations is the period during which the victim can bring a legal action. The expiration of this period will cause the victim to lose the right to bring an action which will prevent him/her from obtaining compensation from the liable party.

The statute of limitations depends on the type of legal relationship, as discussed in section 1, within which the treatment falls.

In the case of a contractual claim, a limitation period of 10 years.

In an extra-contractual claim, a breakdown should be made:

• As of the claim, there is a statute of limitations of 20 years;
• Once the victim has become aware of the damage or its aggravation and of the identity of the person responsible for it, the statute of limitations 5 years;

There are several actions that will cause the statute of limitations to be suspended or interrupted. A suspension will (temporarily) suspend the statute of limitations. With an interruption, a new period will begin to run. This can keep the statute of limitations from running and can be important if the statute of limitations is about to expire. It is important to have the assistance of a specialized lawyer.

Were you the victim of a medical error? Did something go wrong with a treatment at your beautician? We are here to help you. Contact our specialized lawyers for an initial free legal consultation.