Statute of limitation is important and should be considered when pursuing any medical malpractice or failure to obtain informed consent claims.
Contractual relationship
The performance of a medical procedure in accordance with professional diligence according to the rules of the profession and the correct performance of the duty to obtain informed consent is, according to the now well-established case law, which has followed the majority view of legal theory, part of the contractual obligations of the doctor (Article 20 of the Patients’ Rights Act in conjunction with Article 1(1) of the Health Care Act).
The legal basis of the doctor-patient relationship is the healthcare contract, which constitutes the fundamental basis of the rights and obligations of the patient, the doctor, and the healthcare provider. The only exception to the contractual principle is in cases where the doctor must carry out an urgent medical intervention and the patient is in a condition that does not allow him to form his own will.[1]
Contractual obligations
The patient’s obligation is to pay for the service provided, either by himself or through health insurance funds, while the doctor’s obligation is to perform the agreed health service, which usually has the character of an obligation of endeavour, i.e. the doctor is not obliged to achieve a certain result, but (only) to make an effort to do so.[2] In other words, the doctor is not promising a certain result but is only trying to help the patient.
Business liability for damages
If a doctor fails to act as he should according to the rules of the profession, and if a patient suffers harm as a result, the patient may be entitled to compensation. Compensation may also be claimed if the doctor has failed to explain properly the risks associated with the procedure.
If the doctor fails to comply with the standards imposed by the professional doctrine and the patient suffers harm, that constitutes a breach of the contractual relationship and the doctor or the healthcare institution is liable based on business liability for damages (medical malpractice liability). However, the doctor or healthcare institution may also be held liable for legally recognised damage when the medical procedure was carried out in accordance with medical doctrine or lege artis if the doctor failed to fulfil his duty to obtain informed consent by explaining the procedure and one of the risks about which the patient should have been warned materialised (liability based on failure to fulfil the duty to obtain informed consent).
Only emergency medical care provided by a doctor to a patient who, because of his state of health, is incapable of making decisions for himself or of expressing his will (Article 12(2) and Article 28 of the Patients’ Rights Act) can be dealt with based on tort liability, in accordance with the case-law.
Limitation period
A claim for damages for a breach of a contractual obligation shall be time-barred within the period prescribed for the limitation of that obligation. There is no specific time limit for the prescription of health service contracts, so claims for damages under these contracts are time-barred within the general limitation period of five years. Thus, the general limitation period of five years laid down in Article 346 of the Obligations Code applies to claims for damages by injured parties claiming damages for breach of a healthcare contract or for medical malpractice or failure to fulfil a duty to obtain informed consent.
The time frame for pursuing a claim for damages is therefore approximately five years from the time when the patient became aware of the damage and who was responsible for it. This may be after the treatment has been completed or when it is clear that something has gone seriously wrong.
Start of the time limits
The limitation period for a claim for damages for breach of a contractual obligation starts to run on the first day after the day on which the injured party had the right to demand its fulfilment, i.e. after the breach of the contractual obligation. In the case of liability for damages for breach of a contractual obligation, it is also important that the injured party has knowledge of the damage. This means that (also) for the five-year limitation period to start to run for breach of business obligation for alleged medical malpractice and breach of duty to obtain informed consent, it is necessary to establish when the plaintiff became aware that the doctor had breached the contract (committed medical malpractice or failed to perform the necessary duty to explain).
Case law has linked the start of the limitation period to the moment when the damage is identifiable, and the injured party has become aware of all the circumstances that would have enabled it to establish the extent and the amount of the damage and has had every realistic opportunity to pursue its claim. The knowledge of the injured party, or at least the possibility of his being aware of the extent of the damage and of the person who caused it, is important.
In most cases in this field, the limitation period thus begins to run at the end of the treatment or at the moment when the injured party’s state of health has stabilised to such an extent that all the consequences of the harmful event could have been foreseen with a reasonable degree of probability, i.e. when the damage is identifiable.
In complex cases, such as medical cases, it is advisable to seek the assistance of an attorney who is already experienced in this field. With an attorney’s expertise, you will be better able to understand your rights and make the right decision about the next steps.
Written by attorney and partner Katarina Emeršič Polić, mag. prav.
[1] Polajnar-Pavčnik, A.: Obligacijski vidiki razmerja med bolnikom in zdravnikom; Pravo in medicina, Ljubljana, Cankarjeva založba, 1998 – zbirka Pravna obzorja, page. 92-98; Ovčak Kos M., Božič Penko A., Dileme v primerih odškodninskega prava v zvezi z odgovornostjo za medicinsko napako (1.), Odvetnik no. 5 (83), 2017.
[2] Polajnar-Pavčnik, A.: Obligacijski vidiki razmerja med bolnikom in zdravnikom; Pravo in medicina, Ljubljana, Cankarjeva založba, 1998 – zbirka Pravna obzorja, page. 94.