Something can go wrong after a medical procedure or treatment. Sometimes this is a complication that no one could have prevented, but in other cases it appears that a doctor or hospital has made a medical error.
The difference is not always clear to patients, while from a legal perspective it makes a big difference. In this blog we explain what the distinction is, when there is liability and what you can do if you suspect that an error has been made.
What is a complication?
A complication is an unintended and undesirable consequence of medical treatment, which can occur without the doctor doing anything wrong.
Complications can occur with any medical procedure, even if it is performed carefully. They are often known and listed in medical guidelines or package leaflets.
Examples of complications are:
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after-bleeding after an operation;
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an infection despite sterile working methods;
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allergic reactions to medication;
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side effects of treatment that could not be prevented.
A complication can therefore be annoying and drastic, but that does not automatically mean that the doctor is liable.
What is a medical error?
A medical error occurs when a doctor or other healthcare provider has not acted as a reasonably competent and reasonably acting colleague would do in the same circumstances.
This means that something went wrong that could have been prevented if the healthcare provider had followed professional standards.
Examples of medical errors include:
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making an incorrect diagnosis;
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forgetting a medical instrument during an operation;
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administering the wrong medication or dosage;
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failure to comply with safety protocols;
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failure to refer to a specialist in a timely manner.
A medical error therefore involves careless or incompetent action, which has caused or could have caused damage.
Not applying experimental treatment: medical error?
Not applying an experimental treatment is in principle not considered a medical error. Doctors are generally obliged to adhere to existing medical standards and guidelines, as laid down in professional literature and protocols of, for example, theNederlands Huisartsen Genootschap (NHG) or theFederation Medical Specialists (FMS). An error can only occur if a doctor consciously and without good reason deviates from these standards. Refusing or not proposing an experimental treatment - the effectiveness and safety of which have often not yet been sufficiently demonstrated - does not automatically fall under personal injury due to a medical error.When does liability arise?
A doctor or hospital is only liable if three conditions are met:
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There is a medical error (not just a complication).
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The patient has suffered damage (physical, psychological or financial).
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There is a causal link between the error and the damage.
In other words, the error must actually have caused the injury or deterioration of health.
In some situations, the distinction between complication and error can be difficult to make. For example, in the case of a complication that could actually have been prevented if the doctor had acted appropriately. In that case, a complication can still be classified as a medical error.
Complication that becomes wrong: when?
Sometimes an incident appears to be a complication at first glance, but it later turns out that insufficient precautions were taken or that the doctor did not act adequately when the complication occurred.
In those cases, a complication can still lead to liability. For example:
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a subsequent bleeding that is not recognized or treated in time;
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an infection caused by inadequate hygiene measures;
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not taking immediate action in the event of an allergic reaction or oxygen deficiency;
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failure to perform postoperative checks.
The question is therefore whether the doctor acted as may be expected of a competent doctor.
How is it assessed whether something is an error or complication?
If treatment does not go according to plan, this requires further investigation. This often raises many questions for both the patient and the practitioner. How exactly did the injury occur? Could it have been prevented? And can someone be identified as responsible for the damage?The assessment is based on the professional standard — what is considered careful and correct in the medical world.
If in doubt, a medical expert is often called in. This assesses:
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whether the doctor made the correct diagnosis;
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whether the treatment was in accordance with the guidelines;
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whether the complication was foreseeable or preventable;
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and whether the aftercare has been carried out carefully.
Read more about this in our blog The role of the medical advisor in personal injury.
What can you do if you are unsure whether a mistake has been made?
If you suspect medical malpractice, it is important to first understand what exactly happened.
You can start with the following steps:
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Request your medical file
You have the right to inspect and receive a copy of your file. Read more about this in our blog Medical file: access, copy and correction. -
Ask your doctor for an explanation
You may ask the doctor for an explanation about the course of the treatment and any complications. -
Contact a medical advisor or lawyer
A medical advisor can assess whether the treatment was within professional standards.
Next, a specialized medical liability lawyer can determine whether you are entitled to compensation.
Types of damage you can recover
If a complication turns out to be the result of a medical error, you may be entitled to reimbursement of:
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Medical costs (such as follow-up treatments, medication or rehabilitation)
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Loss of income (due to disability)
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Domestic help or adjustments in the home
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Penalty for pain, sorrow and psychological suffering
Read more about this in our blog Penalty for medical errors.
Why choose Arslan Advocaten?
At Arslan Lawyers we regularly handle cases in which the distinction between a complication and a medical error is central.
Our lawyers work closely with medical specialists and experts, so that every case is carefully substantiated.
We ensure that:
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your file is fully investigated;
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the medical error is clearly demonstrated;
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you will receive maximum compensation;
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and you will be completely unburdened during the process.
Our legal assistance is completely free of charge for victims — we recover the costs from the liable party.