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Medical Error in Private Clinic: Who Is Liable?

Private clinics – such as cosmetic centers, dental practices or private hospitals – are rapidly gaining popularity.
Many people choose these institutions because of short waiting times, personal service and modern treatment methods.
But what if something goes wrong? Who is then liable: the doctor, the clinic or another party?

In this article we explain when there is a medical error, who the liable party is and how you can receive compensation in the event of an error in a private clinic.

What is a private clinic?

A private clinic is a healthcare institution that offers medical or cosmetic treatments outside the regular hospital.
Consider:

Cosmetic clinics (botox, fillers, eyelid corrections, breast operations)
Dental centers
Orthopedic or eye clinics
Clinics for laser treatments or pain therapy

Although these healthcare institutions often operate commercially, they must meet the same care standards as regular hospitals.
This means that they are obliged to work in accordance with the professional standard and the applicable legislation, such as the BIG Act and the Wkkgz.

In other words: a care provider must always observe the care of a good care provider. This means that he or she works according to professional standards - which in turn are based on training requirements, protocols, rules of conduct and the latest insights from scientific literature and practice. These standards are not only tested against errors, but they also form the basis for daily actions within private clinics.

What is a medical error in a private clinic?

A medical error is an act (or omission thereof) that does not comply with what may be expected of a reasonably competent and careful healthcare provider.
At private clinics this occurs in various forms, for example:

Incorrect execution of a cosmetic treatment, operation or dental procedure.
Incorrect dosage of injectables (such as Botox or fillers).
Use of unapproved or unsafe products.
Poor hygiene or incompetent employees.
Insufficient information about risks, recovery or alternatives.
Delayed or inadequate aftercare in case of complications.

Skill and professional standard The law prescribes that every doctor and healthcare provider must act in accordance with professional standards and the requirements of professional competence (as laid down in Article 7:453 of the Dutch Civil Code). This means that a doctor must behave as can be expected of a reasonably acting and competent colleague. If he does not do so, there is a shortcoming in the care. A violation of these standards also falls under social due diligence. If a doctor does not act competently or does not adhere to professional standards, this can lead to liability for medical malpractice. This also applies when it comes to actions or omissions (including insufficient explanation about risks or alternatives). In short, if a doctor or clinic deviates from professional standards or due care requirements, there may be a medical error for which they may be liable.

Who is liable for a medical error in a clinic?

Liability depends on the legal relationship between the patient, the doctor and the clinic.
There are three main types:

The doctor is a self-employed person (self-employed):
The doctor is personally liable for his errors. In that case, the patient immediately concludes a treatment agreement with the doctor.
The doctor works for the clinic:
The clinic is liable for errors by its employees. This follows from Article 7:462 of the Dutch Civil Code: the healthcare institution is liable for errors made by its assistants.
The treatment was carried out by a non-authorized healthcare provider:
If someone without a BIG registration performs medical procedures, the clinic itself is responsible for admitting and deploying that person.

Legal bases for liability

Whether you can actually claim compensation or damages after a medical error depends on the legal basis on which liability is based. This can be done in two ways:

Breach of performance (art. 6:74 BW): If the doctor orclinicfails to comply with the treatment agreement, there may be a breach of contract. For this, five elements must be present: damage, a shortcoming in performance, attributability, a causal link between the error and the damage, and negligence (Article 6:81 of the Dutch Civil Code).
Tort (art. 6:162 BW): An act or omission that is contrary to the care that can be expected of a reasonably competent and careful healthcare provider may constitute an unlawful act. There are also five requirements here: damage, an unlawful act, attributability, a causal connection and relativity (Article 6:163 of the Dutch Civil Code).

In short: you can hold the doctor or theclinicliable if the due care requirements that may be expected of a reasonably competent and careful healthcare provider have not been met. The correct claim and procedure depend on who formally entered into the treatment agreement and whether there is a shortcoming or an unlawful act.

In short: in most cases you can hold the clinic itself liable — even if the mistake was actually made by an individual doctor.

Liability of the doctor in case of breach of contract

You can hold a doctor liable on the grounds of breach of contract if there is a treatment agreement between you and the doctor and the doctor does not fulfill his obligations under that agreement. This usually concerns a so-called efforts obligation: the doctor must make sufficient efforts to provide good care in accordance with the applicable professional standard, but often cannot guarantee the final result. Only if the doctor really performs below par—for example, by not acting carefully, making mistakes or providing insufficient explanation—we speak of malpractice. Difference between effort and results obligation:

A best efforts obligation (as almost always with medical treatments) revolves around the commitment and expertise of the doctor. Failure to achieve the desired result does not automatically mean that there is an error.
In the case of a result obligation (for example, placing a prosthesis with the agreement that it functions), it is the intended result that counts. If this is not achieved, non-performance may occur more quickly.

If breach of contract cannot be proven, liability may still arise in some situations on the basis of tort (Article 6:162 of the Dutch Civil Code), for example if the doctor has acted carelessly or recklessly. Tip: It is therefore essential to always clearly record what exactly has been agreed with the doctor and to seek legal advice if in doubt.

How is attributability determined in the event of a medical error?

Not every error automatically means that the clinic is liable. There must be 'attributability': the error must be attributable to thedoctor orclinic can be attributed. This can be done in two ways:

Fault liability: This is the case if thedoctor or healthcare provider has demonstrably acted carelessly, for example by making a clear mistake or not following professional standards. This concerns a situation in which a reasonably competent colleague would not have acted in this way.
Strike liability: Sometimes the risk of treatment lies with the healthcare provider, even if there is no immediate fault. This may be the case when using improper tools or hiring unauthorized employees. If this causes damage, the clinic may also be liable.

Which form of liability applies depends on the circumstances of the case. The difference is important: with fault liability you usually have to prove that thedoctor really made a mistake. This is not necessary with strict liability; then it is sufficient that you have suffered damage due to the risk for which the clinic is responsible.

Difference between breach of contract and tort

People often immediately think of liability as a medical error or poor implementation of treatment. But on what legal grounds can you appeal to the clinic or doctor? This can be done in two ways: on the basis of breach of contract or tort.

Default This involves an agreement between you and the healthcare provider (for example a treatment agreement). If the doctor or clinic does not comply (properly) with this agreement, there is a breach of contract. Consider failure to provide the agreed care, failure to comply with protocols, or other shortcomings in the implementation of the treatment.
Tort In the case of an unlawful act, there does not need to be an agreement. Someone commits an unlawful act when he/she acts contrary to the law, rules, or what is considered 'careful' in society. For example: carrying out a treatment without the correct qualifications, or not complying with applicable professional standards or hygiene rules. Violation of this social care can lead to liability, even if there is no contract with the patient.

In short:

For breach an agreement is required (and breached).
In a wrongful act, no agreement is necessary; liability may arise from violation of legal or social norms.

The clinic's obligation to provide information

An important part of the duty of care is providing correct and complete information.
The clinic must inform you in advance about:

the purpose of the treatment;
the risks and complications;
the costs;
and possible alternatives.

Without this information you cannot give “informed” consent.
If the obligation to provide information is violated, the treatment has been carried out unlawfully and the clinic may be liable for the consequences.

Common mistakes in private clinics

Cosmetic flaws
- Asymmetrical results after fillers or botox
- Infections or scars after operations
- Failed breast enlargements or eyelid corrections
Dental errors
- Nerve damage due to implants or root canal treatments
- Incorrect placement of crowns or bridges
- Infections due to poor hygiene
Unauthorized practitioners
- Non-physician performs medical intervention
- Use of unapproved resources
- Lack of medical supervision
Administrative errors
- Incomplete file or incorrect patient data
- Lack of aftercare or follow-up appointments

What damage can be compensated?

In the event of a medical error, you can recover various damages.

Material damage:

Costs of recovery operations and medical treatments
Medication and travel costs
Loss of income due to disability
Costs for psychological help

Intangible damage (punishment):

Pain, suffering and fear
Physical or psychological limitations
Aesthetic damage (such as failed cosmetic procedures)

What to do in case of an error in a private clinic?

Request your medical file
You have the right to inspect and receive a copy of your file.
Have a medical opinion drawn up
An independent expert can assess whether the treatment was carried out culpably. A medical feasibility study is a study that assesses whether a specific medical treatment or intervention could reasonably have achieved the desired result in a specific situation. This type of investigation is necessary when assessing medical liability because it helps determine whether the healthcare provider's actions or omissions actually caused harm, or whether the adverse outcome would have occurred anyway regardless of the care provided. By conducting a medical feasibility study, experts can establish a link (or lack thereof) between the medical action and the patient's health outcome, which is crucial in legal assessments of liability.
Record the error in writing with the clinic
Ask for a written response or use the internal complaints procedure.
Get legal help
A specialized lawyer can draw up the liability claim and negotiate on your behalf with the clinic's insurer.

Why Arslan & Arslan Lawyers?

At Arslan & Arslan Lawyers we regularly handle cases against private clinics, cosmetic centers and independent doctors.
Our lawyers specialize in medical liability and work together with independent medical experts.

We ensure that:

your case is carefully investigated;
you will receive free legal assistance (we will recover the costs from the liable party);
and you will receive maximum compensation for your injuries and psychological damage.

Mistake made by a private clinic? We will help you

Have you suffered any complications or damage after treatment in a private clinic?
Contact Arslan & Arslan Advocaten for a free assessment of your case.
We ensure that you get what you are entitled to — expertly, quickly and completely free of charge.

Medical Error in a Private Clinic: Who Is Liable?