Based on this obligation, we can claim damages from a doctor. For this purpose, we must prove that: the damage was caused (damage to health), the damage is the result of a tort (violation by a doctor of the applicable rules of conduct resulting from science and medical practice) and that there is a causal relationship between the damage and the tort.
The liability in question is based on the principle of guilt, and the burden of proving it rests with the patient. Thus, when claiming compensation, we must prove the fact that the doctor caused us harm and that he was guilty. On the other hand, the doctor, wanting to free himself from tort liability, will prove that he did not commit the act or that it was not his fault.
It occurs when the doctor and the patient were previously bound by an agreement, even an oral one (as in the case of treatment in a private clinic), and the damage resulted from non-performance or improper performance of this agreement, i.e. obligations. When claiming compensation in this manner, we only need to prove that we have suffered damage as a result of non-performance or improper performance of an obligation, but we do not have to prove the doctor’s fault.
The doctor may release himself from liability if he proves that he is not responsible for the damage, either willful or unintentional. Let me remind you that a contract for the provision of medical services is a due diligence contract, not a result contract.
The result is, for example, a cure, no metastases after tumor resection, or the recipient’s organism not rejecting the transplanted organ. The doctor is not responsible for the lack of a result. He is only responsible for exercising due diligence in the undertaken medical activities, i.e. for the observance of all necessary medical procedures (e.g. ordering full, and not only cheaper diagnostics) and the use of up-to-date indications of knowledge.
A privately practicing physician
In order to determine the scope of a doctor’s liability for a specific damage, it is necessary to establish the form of his employment and the legal status of the medical facility employing him. A doctor in a private office treats us on the basis of a contract (usually oral). On its account, it undertakes to exercise due diligence specified, inter alia, in the principles of medical ethics and in the act on the medical profession.
If he does not exercise such diligence and causes damage to the patient, he is responsible not only for non-performance or improper performance of the contract, but also for causing a tort (bodily injury or health disorder). Thus, both modes of responsibility converge.
Hospitals are more and more willing to employ doctors for the so-called contracts – i.e. civil law contracts. There is a widespread phenomenon of departing from employment contracts. A doctor employed under a contract can usually count on more favorable pay conditions than he would receive in the case of an employment contract.
The consequence of choosing a contract, however, is a wider scope of civil liability for the so-called medical error and related claims for damages. What is better for a doctor, a contract or an employment contract? Patient claims are becoming commonplace and often amount to hundreds of thousands of zlotys. In this article, I will try to present the advantages and disadvantages of both solutions.