When you suffer damage due to a medical error, it is not always clear who exactly is liable: the doctor, the hospital, or both.
Many patients think that only the doctor is responsible, but in most cases, the liability legally rests with the hospital.
In this blog, we explain how this liability works, what the difference is between hospitals and independent medical practices, and how you can recover your damages.
Who is liable for a medical error in the hospital?
If an error is made by a doctor, nurse, or other employee who is employed by the hospital, then the hospital is liable for the damages.
This is because the law stipulates that an employer is responsible for errors made by their employees — this is called vicarious liability.
The hospital bears the so-called 'liability under Article 6:170 of the Dutch Civil Code'.
This means:
The patient does not need to hold the individual doctor liable, but can hold the hospital liable for that doctor's error.
The patient thus has one clear opposing party: the hospital.
Why does this principle apply?
The starting point is that the hospital is responsible for the organization of care and for the people who work in it.
A patient enters into a treatment agreement with the hospital (and not always directly with the doctor), which makes the hospital responsible for a safe and expert execution of the treatment.
The hospital is therefore liable when:
a doctor or nurse makes an error during treatment;
errors are made in administration, planning, or aftercare;
there is insufficient supervision or monitoring of the execution of medical procedures.
What if the doctor is not employed by the hospital?
Not all doctors are employees of the hospital.
Some work as independent specialists or partnerships within the hospital, for example surgeons, anesthesiologists, or radiologists.
In that case, the liability is somewhat more complicated.
Then the question is whether the patient could reasonably assume that the doctor was acting on behalf of the hospital.
➡️ If so — for example because the patient was treated in the hospital, under the flag of that hospital — the hospital remains liable.
➡️ If, however, it was clear that the doctor worked independently (for example a private clinic or independent practice), then the doctor may be personally liable.
Examples from practice
A nurse administers the wrong medication in the hospital.
→ The hospital is liable, because the nurse is an employee.An independent radiologist misreads an X-ray in the hospital.
→ The hospital is usually liable, unless it is clear that the radiologist worked outside the organization.A surgeon makes an error in a private clinic outside the hospital.
→ The clinic or the doctor themselves may then be liable.
What if multiple parties are involved?
Sometimes different specialists work together on one treatment — for example the GP, specialist, and anesthesiologist.
If something then goes wrong, it may be the case that multiple parties are liable.
The law stipulates that if it is not precisely clear who made the error, all involved parties can be jointly and severally liable.
This means that as a patient you have the right to hold one of them liable for the full damages, after which they can sort out among themselves who pays which share.
Hospital liability for errors by support staff
Hospitals are not only responsible for medical specialists but also for support staff, such as:
nurses;
laboratory technicians;
reception staff;
administrative personnel.
Even if an error is made there — for example in the registration of medication, blood samples, or examination results — the hospital can be held liable.
When is the hospital not liable?
There are some exceptions where the hospital is not liable:
If the error was made outside the care relationship (for example in a private setting).
If the patient was deliberately treated by an independent doctor outside the hospital.
If there is an unforeseeable complication without error (read more about this in our blog Complication or medical error: what is the difference?).
In most cases, however, the hospital remains liable, especially when the patient had no choice in which doctor treated them.
How do you hold the hospital liable?
If you suspect that a medical error was made, it is important to act carefully:
Request your medical file
You have the right to access and copy your file.
Read more about this in Medical file: access, copy, and correction.Have the case assessed by a medical advisor
This expert assesses whether the treatment deviated from the professional standard.Engage a specialized lawyer
A medical liability lawyer assesses whether the error can legally be classified as negligence and holds the hospital liable.
Types of damages you can recover
In case of a medical error in the hospital, you can have various types of damages compensated, including:
medical costs and rehabilitation;
loss of income due to disability;
household help or home modifications;
travel costs to doctors and specialists;
pain and suffering compensation for pain, grief, and loss of quality of life.
Read more about this in our blog Pain and suffering compensation for medical errors.
Why choose Arslan Advocaten?
At Arslan Advocaten, we have extensive experience with complex cases involving both doctors and hospitals.
We work with medical specialists and experts to carefully demonstrate the error and achieve maximum compensation.
Our clients appreciate that we:
provide direct personal contact with a lawyer;
clearly explain what is legally feasible;
and work completely free of charge for victims, because we recover our costs from the liable party.