After a medical treatment, something may go wrong. The patient experiences damage, pain, or a worse recovery than expected. But does that automatically mean there was a medical error? Not always. In this blog, we explain the difference between a medical error and a complication, when a doctor or hospital is liable, and how you can safeguard your rights.
What is a medical error?
A medical error (also called a 'professional error') means that a doctor, specialist, or other healthcare provider did not act as could be expected from a reasonably competent and careful practitioner.
There is culpable action or omission, resulting in damage that could have been prevented with careful medical practice.
Examples of medical errors:
An incorrect diagnosis or late recognition of a condition;
Wrong medication or dosage;
Surgical errors (such as damaging nerves or organs);
Insufficient aftercare or late treatment of complications;
Incorrect or incomplete information to the patient (lack of informed consent).
Read more about this in our blog Medical liability in the Netherlands.
What is a complication?
A complication is an unwanted but known risk of a medical procedure that can occur without anyone making an error.
Complications can arise despite careful and professional practice. They are often part of the medical risks that should have been discussed with the patient beforehand.
Examples of complications:
An infection after surgery despite sterile conditions;
Post-operative bleeding or scar formation;
An allergic reaction to medication or anesthesia;
An unexpected side effect of a treatment that was medically unavoidable.
If you were correctly informed about this risk beforehand and the doctor acted carefully, there is usually no liability.
Informed consent in complications
Complications often play a role in the question of whether you were properly informed about the risks.
If the doctor did not or insufficiently inform you about possible complications, your consent may have been not legally valid.
In that case, there may still be a breach of the duty to inform, even if the complication was medically not culpable.
Read more about this in our blog Informed consent: when is consent legally valid and when not?
When is a doctor or hospital liable?
A doctor or hospital is liable when:
The healthcare provider made an error (careless or incorrect action);
The patient suffered damage as a result;
There is a causal connection between the error and the damage;
The error can be proven, for example through the medical file or expert report.
For liability, the mere existence of damage is not sufficient — there must also be a culpable error.
How can you prove this?
The most important evidence in medical liability is the medical file. This should document what was discussed, how the treatment was performed, and how complications were handled.
Therefore, always request your file. How to do this is explained step by step in our blog Medical file: access, copy, and correction.
Additionally, an independent medical advisor is usually engaged to assess the file. This expert compares the treatment with what is normally customary within the field.
Practical example
A patient underwent hip surgery in which a nerve was damaged. The doctor had insufficient visibility during the procedure and acted too quickly. The damage was not the result of an unavoidable complication, but of an error in execution.
The insurer acknowledged liability and the patient received compensation of over €65,000 for medical costs, loss of earning capacity, and pain and suffering.
What can you do if in doubt?
Are you unsure whether you are dealing with a complication or a medical error?
Take the following steps:
Request your medical file;
Note your complaints and the course of treatment;
Have the file assessed by an independent medical advisor;
Have a personal injury lawyer assess whether a liability claim is worthwhile.
Read more about this process in How does the personal injury process work?.
Types of compensation
Upon acknowledgment of liability, you are entitled to compensation for both material and non-material damages.
Think of medical costs, loss of income, household help, and compensation for pain and suffering (pain and suffering compensation).
Read more about calculating pain and suffering compensation in our blog How can you calculate pain and suffering compensation?.
Why Arslan Advocaten?
At Arslan Advocaten, we have years of experience with medical liability cases. We work together with specialized medical advisors, assess your file free of charge, and recover all costs from the liable party.
This way, you can be sure that your rights are safeguarded and that you receive what you are entitled to — without financial risk.