Was it a medical error or a complication is a common question in practice and it can be decisive for assessing potential liability for damages. Consequently, it is important to distinguish between whether a medical professional error or a medical complication has occurred in a given case.
The legal basis
Article 20 of the Patients’ Rights Act provides, inter alia, that a patient has the right to be informed in a timely and detailed manner about the course of treatment and, after the medical intervention or treatment has been completed, the right to be informed about the outcome of the treatment or any complications.
Medical error
A medical or professional error is a failure by a medical practitioner to act as required when the deterioration of a patient’s health is the result of his or her professional misconduct or breach of the duty of professional care, in accordance with the case-law of the Supreme Court of Justice.
A doctor is thus guilty of professional misconduct if he/she fails to act with the utmost care, in accordance with the rules of medical science and profession and with custom, if he/she acts contrary to the professional and occupational standards of conduct and behaviour in force in the field of medicine at the time of the harmful event, and if he/she fails to prevent harm to the patient or causes the patient’s health to deteriorate. The first part concerns the legal standard of care of a good professional, which is defined in the Civil Code.
Court appointed expert
The court, with the assistance of a medical expert, determines the content of the standard of professional care by ascertaining what modern medical doctrine and professional norms require in the specific case, in the light of the development of the healthcare system in the Republic of Slovenia. On the basis of the information provided by the expert and in the light of the circumstances of the particular case, he/she then decides whether the doctor’s conduct in the particular case complied with those requirements or whether it departed from them and, therefore, whether the doctor is guilty of a breach of the duty of care.
Duty to explain
Once the court has found that there has been professional misconduct, any circumstances relating to the breach of the duty to explain are legally irrelevant. The patient’s possible acquiescence to acts contra legem artis cannot be legally valid. Even if the doctor informs the patient in advance that a professional error may occur (because he/she is tired, exhausted, overworked, nervous, etc.), this does not exclude the liability of the healthcare institution for damages.
Complication
A medical complication that may occur during treatment that has been carried out in an otherwise professionally sound and diligent manner must be distinguished from a medical error. It occurs rarely, randomly and, although foreseeable, cannot be prevented. In the event of a complication, the liability of the healthcare institution for damages is therefore excluded, as the Supreme Court has already held.
Case law
For example, the court found, with the help of court appointed medical experts, that the surgical method was chosen in accordance with the rules of science and the profession. Thus, there was no illegality of conduct and the damage suffered by the applicant was not the result of a medical error, i.e. concerning an unprofessional choice of method or an unprofessional performance of the operation, but rather that the nerve damage and neuralgia in the specific case was a rare medical complication which can occur despite a carefully performed operation.
The Supreme Court has also held in another case that the extremely low statistical incidence of reactions, combined with the assessment, based in particular on the substantively consistent opinions of the two appointed experts, that the conduct of the medical staff before, during and after the examination did not deviate from professional standards of professional conduct, care and diligence, permits the conclusion that the deterioration in the applicant’s health was not the result of a professional medical error but of an accidental complication which, although foreseeable, could not have been prevented by professionally impeccable and duly diligent conduct.
These are certainly complex cases for which it is appropriate to seek the advice of a specialist who has already dealt with these kind of matters.
Written by attorney and partner Katarina Emeršič Polić, mag. prav.