Medical liability comes into play when a treatment goes wrong and you are left with additional complaints, limitations, or costs. You then wonder: is this "bad luck," a complication, or did a doctor or hospital make a mistake? And if a mistake was made: how do you obtain compensation and pain and suffering damages?
In this article, we explain it step by step. You will read what medical liability means, when a healthcare provider can be liable, what you should do immediately to preserve evidence, and how a claim usually proceeds. Want more in-depth information per topic? At the bottom, we provide links to in-depth pages on our website.
What does medical liability mean?
With medical liability, you hold a healthcare provider liable because they did not act carefully enough. This concerns a doctor, hospital, midwife, physiotherapist, or other care provider. The key question is always the same:
- Did the healthcare provider act as a reasonably competent and reasonably acting peer in the same situation would have done?
Important: a complication is not automatically a mistake. Every treatment carries risks. Only when the healthcare provider breaches the professional standard does liability arise. Read more about this: Complication or medical error: what is the difference?
The duty of care of the healthcare provider: what can you expect?
The law expects due care. A doctor must work according to current medical insights, guidelines, and protocols. The assessment also depends on the role of the healthcare provider. A general practitioner is a generalist. A specialist is held to a stricter standard within their own field.
You can also find general information about this from the government: Government: rights during medical treatment.
When is there a medical error?
A medical error can arise in many ways. Think for example of:
- a wrong or delayed diagnosis;
- an error during a surgery or treatment;
- a medication error (wrong medication or wrong dosage);
- insufficient monitoring, delayed response, or poor aftercare;
- inadequate explanation of risks or alternatives (problem with informed consent).
Are you particularly uncertain about a diagnosis? Then read: Wrong diagnosis: when is there a medical error?
Informed consent: permission only works if you are properly informed
A doctor must explain to you before a treatment what will happen. You must also know the main risks. You must be able to discuss alternatives. Only then can you give true consent. If that information is missing, it can contribute to liability. This topic is often underestimated in medical cases.
Read more about this in our content on informed consent: Informed consent: when is consent legally valid?
Who do you hold liable: the doctor or the hospital?
Often you direct the claim at the hospital. That is practical and usually also legally logical. The hospital can in many cases be liable for errors by doctors or staff working there. This often makes the settlement faster and clearer.
Read about this: Hospital liable for errors by doctors: how does that work?
Evidence: your medical file is often the most important document
A medical claim stands or falls with evidence. Therefore, start securing the facts as soon as possible. The medical file almost always forms the starting point. This file contains notes, results, surgical reports, medication, consultations, and correspondence, among other things.
You have the right to access and (at least) one free copy. You can find information about this at:
Practical tips to strengthen your evidence
- Write down immediately what happened. Note dates and names.
- Request your complete file. Do not delay.
- Keep letters, appointments, photos, and medication overviews.
- Have your complaints documented by your general practitioner or treating physician. Ensure a clear medical trail.
How does a medical liability claim proceed?
A proper approach almost always follows the same steps. This prevents unnecessary delays and disputes.
1) Inventory and requesting the file
We map out the facts and request the medical file. We also examine the complete damage picture: complaints, limitations, work, family, and costs.
2) Medical assessment (feasibility study)
Then you have a medical advisor assess the file. They compare the healthcare provider's actions with the professional standard. This step often determines whether a claim is viable.
3) Holding liable
If the case is viable, we hold the healthcare provider or insurer liable. We substantiate this with facts, file documents, and medical arguments.
4) Negotiation on compensation
If the insurer acknowledges liability, we negotiate the damages. We often also request advance payments if you have immediate costs.
5) Proceedings if necessary
If a dispute arises about liability or damages, proceedings may follow. We only take this step when it is necessary.
Want to know how a personal injury case generally proceeds? Then read: How does the personal injury process work?
What damages can you claim for a medical error?
In medical liability cases, multiple types of damages are often involved. You can think of:
Material damages (costs and loss of income)
- medical costs you pay yourself;
- additional treatments, aids, or rehabilitation;
- travel and parking costs;
- loss of income or loss of earning capacity;
- costs for domestic help or informal care.
Want to read more about loss of income? See: Loss of earning capacity in personal injury.
Non-material damages (pain and suffering)
Pain and suffering damages compensate for pain, grief, fear, stress, and loss of quality of life. The amount depends on your injury, the duration of recovery, and the impact on your daily life.
Read more: How can you calculate pain and suffering damages? and Pain and suffering damages in personal injury.
Statute of limitations: do not wait too long
Medical cases have statutes of limitations. Often a period of five years applies from the moment you become aware of the damage and the potentially liable party. Additionally, an ultimate long-term deadline often applies. In practice, this regularly goes wrong because people wait too long.
Are you uncertain about the statute of limitations? Then seek advice quickly. You can usually "stop" the limitation period with a written interruption notice. This prevents your right from expiring.
Common misconceptions
- "There was a complication, so I am always right." No. You must demonstrate that the healthcare provider acted outside the standard.
- "I have to go through a complaints procedure first." That is not necessary. You may investigate liability directly.
- "I have no clear abnormality on scans, so I cannot claim anything." That is incorrect. It is about complaints, limitations, and evidence in the chain.
- "The doctor will probably not admit it." That indeed does not always happen. That is why it comes down to the file, experts, and substantiation.
Why Arslan Advocaten?
Medical liability is specialist work. You need to translate medical facts into legal liability. You also need to properly substantiate and monitor your damages. We help you with this step by step. In many cases, we can recover our costs from the liable party. This means you usually do not need to worry about attorney fees if liability is acknowledged.
Want to know if your situation is viable? Then contact us via the contact form on our website. We assess your case and explain what your best next step is.