How to establish physician and hospital liability in malpractice cases. STATISTICAL DATA

Every year, several hundred patients file complaints against doctors for alleged cases of malpractice. Doctors should inform themselves both about the responsibility of the medical act and about the way to take insurance measures or, in the last instance, to challenge the sanctions received in the courts, drew the attention of Av. Laura Scutaru, Managing Associate of the law firm Pavel, Mărgărit si Asociații, a law firm specialized in litigation and arbitration within the conference “Excellence in Medicine in Pharmacy”, the 2nd edition, organized by the Bucharest Chamber of Commerce and Industry and Universul Legal.

A case of malpractice involves both a form of tortious civil liability, which applies in the doctor-patient relationship, and a form of contractual civil liability, which intervenes in the relationship between the doctor and the medical unit where he works.

“In a case of malpractice, for there to be tortious civil liability on the part of the doctor, four conditions should be cumulatively met: the existence of an illegal act, the occurrence of the damage, the existence of a causal link between the illegal act and the damage caused, as well as the doctor’s guilt. Within the framework of contractual liability, the four conditions must also be fulfilled, cumulatively. In this case, the unlawful contractual act is stipulated in the agreement of the parties and consists in the non-execution of the contractual obligation”, said lawyer Laura Scutaru.

In an alleged case of malpractice, the disciplinary action of the College of Doctors in Romania must be initiated within 6 months at most from the date of the act or from the date of knowledge of the elements that generated the damage.

However, the disciplinary liability of the members of the College of Doctors in Romania does not exclude either criminal liability or civil liability.

In the case of civil liability, the general limitation period is 3 years, if the law does not provide for another term, and it begins to run from the date when the injured party knew or should have known the damage or the person responsible for it.

“If a doctor has been sanctioned by the College of Doctors, he can challenge the decision in court. It must be taken into account that, in some cases, we are not dealing with a singular fault but the joint fault of the doctor, the hospital unit and, sometimes, also the suppliers of medical equipment. Also, there are cases in which the episode that led to the accident cannot be considered malpractice. In this sense, it is recommended that doctors contact a specialized lawyer, for good representation in court. At the same time, it is essential that the medical staff take out malpractice insurance every year, which covers such cases”, said Av. Radu Pavel, Managing Partner of Pavel, Mărgărit and Associates.

If the patient, the doctor and the insurer want to avoid the medical commissions, the College of Doctors, the prosecutor’s office and the courts, they can call on a mediator to reach a mutually beneficial agreement, said lawyer Laura Scutaru.

Doctors should seek legal advice not only in possible malpractice cases, but also in their day-to-day work. Thus, starting in May, the medical staff must ensure that the use of patient files and records respects the principles of personal data protection. Failure to comply with these principles can result in fines ranging from 2 to 4% of the total annual worldwide turnover corresponding to the previous financial year.

Every year, several hundred reports are submitted to the College of Doctors in Romania against doctors, for alleged cases of malpractice (see ANNEX). Over the years, up to 30% of complained doctors have been penalized by the College of Physicians, having the opportunity to challenge the decision in court. In order to have the best representation in cases of this kind, it is recommended that the concerned doctors turn to a lawyer specialized in litigation and arbitration, recommends the lawyers from Pavel, Mărgărit și Asociații.

The Pavel, Mărgărit și Asociații team consists of specialized lawyers, who provide legal services of the highest quality, exceeding clients’ expectations. The company approaches the cases with maximum professionalism and dedication, the ultimate goal being the achievement of the clients’ objectives, the results being exceptional. Among the law firm’s clients are large-scale multinational and domestic companies. In 2018, the law firm’s successful cases brought it international recognition from the most prestigious international guides and publications in the field. Thus, the law firm P avel, Mărgărit și Asociațiithis year it was ranked 2nd in Romania in the ranking of business law firms with the most relevant expertise, made by the publication Legal 500, the most prestigious guide of law firms in the world, based in London. The law firm is also internationally recognized by the IFLR 1000 Financial and Corporate 2018 guide. Also, Pavel, Mărgărit și Asociații is the only law firm in Romania recommended by the international director of Global Law Experts in London in the Dispute Resolution practice area. All relevant information regarding the law firm Pavel, Mărgărit și Asociații,starting from the areas of expertise to the most relevant cases in the portfolio, they can be found on the portal www.avocatpavel.ro, one of the most complex existing on the Romanian law market.

STATISTICS ON CASES OF MALPRAXIS

In 2017, 102 doctors were the subject of reports that were analyzed by the Higher Disciplinary Commission of the College of Doctors (CSD). Most of the referrals concerned medical personnel with the following specializations: general surgery – 15 cases, ATI – 15 cases, obstetrics and gynecology – 14 cases, UPU – 8 cases, gastroenterology – 7 cases.

In total, the Higher Disciplinary Commission issued sanctions against 19 doctors, one of the sanctions even aimed at banning them from practicing the profession for a month. This is a general surgery cause. At the same time, the Higher Disciplinary Commission decided that it is not necessary to apply any sanction in 74 cases.

The evolution of malpractice cases in the last five years

The last three years have recorded a decrease in the number of malpractice reports. But, from one year to the next, we can see a slight increase in the number of doctors sanctioned, compared to the total number of doctors against whom complaints were filed.

Thus, if in 2015 sanctions were issued against only 10% of doctors against whom complaints were filed, last year this percentage rose to almost 20%. However, during the last ten years it appears that the fluctuations are quite large from one year to the next, and the evolution is not linear. Thus, there were years in which more than 30% of referrals turned into sanctions, as well as years in which this percentage was below 9-10%.

Since the establishment of the Higher Disciplinary Commission until now, i.e. in the last 12 years, reports have been filed against 2,127 doctors, of which 376 have been sanctioned.

Source: Higher Disciplinary Commission of the Romanian College of Physicians

Court appeals

Every year, part of the decisions issued by the Disciplinary Commission are contested by doctors in court. There are also cases in which patients challenge in court the non-sanctioning decisions or the decisions by which the Commission rejected the referral, because it was not submitted within the deadline.

Thus, last year, out of the 75 decisions issued, 8 were challenged in court. In one of the cases, the court forced the Commission to resolve a referral that it had initially rejected as being formulated late. Other litigation is still ongoing. In 2016, out of the 140 decisions adopted by the CSD, 10 were challenged in court, 7 by the sanctioned doctors and 3 by the patients. In 2015, out of the 157 solutions adopted by the CSD, ten were challenged in court.

The average time to resolve the files is about 2 months and five days

The average resolution time of the files pending before the Higher Disciplinary Commission is 2.6 months. The interval can vary between one week and 10 months, depending on the case. Thus, the analysis term can be extended depending on the degree of complexity of the case. Sometimes, in addition to the hearing of the person who filed the complaint, it is also necessary to hear the doctor/doctors involved in the case as well as opinions from CMR experts. Also, during the investigations, documents may be requested from hospitals, institutions, with which the patient has come into contact or which hold documents related to the analyzed case. If CSD decisions are challenged by doctors or patients in court, the resolution time increases.