Medical negligence in Poland: the Compensation Fund or the court

Bartosz Krycki, attorney-at-law · 10 min read

If treatment in Poland harmed you, there are two routes to compensation. You can sue the hospital, clinic or doctor in a Polish court, or apply to the Medical Events Compensation Fund. The Fund is faster, but it deals only with treatment connected with a hospital, and accepting its payment means giving up further claims for damage that appeared before your application. A court claim takes longer, but it covers every kind of medical provider and the amount is not limited by tables.

What counts as medical negligence

For the Fund, the law uses the term „medical event”. It means an infection, an injury or a health disorder, or the death of a patient, that occurred in the course of treatment or as a result of treatment given or not given, and that with high probability could have been avoided if the treatment had been in line with current medical knowledge, or if another available diagnostic or treatment method had been used. Normal and foreseeable consequences of a method to which the patient gave informed consent do not count (Article 3 paragraph 1 point 11 of the Patients’ Rights Act).

In court the question is fault: whether the staff acted below the standard required of them, and whether that caused your injury. Complications as such are not negligence. What matters is whether proper care would have prevented them or reduced their effects.

Route one: the Medical Events Compensation Fund

Who can apply

The patient applies. After the death of a patient, the application can be made by a first-degree relative, a spouse who was not separated, a person in an adoption relationship with the patient and a person who lived with the patient in a de facto partnership (Article 67r paragraph 2 and Article 67t paragraph 2 of the Patients’ Rights Act).

Where and when

The application is filed with the Patient Ombudsman (Article 67t paragraph 1 of the Patients’ Rights Act). It must be filed within one year from the day you learned of the infection, injury, health disorder or death, but no later than three years from the event that caused it (Article 67t paragraph 3 of the Patients’ Rights Act). The application names the entity running the hospital with whose activity it is connected (Article 67u paragraph 1 point 8 of the Patients’ Rights Act).

The fee

Filing the application is subject to a fee. The statute sets it at PLN 300, indexed every year, and the current amount is published by the Patient Ombudsman. The fee is refunded if compensation is granted (Article 67t paragraphs 4 to 7 of the Patients’ Rights Act).

The amounts and the waiver

The amounts paid by the Fund are set by a regulation of the Minister of Health. If you accept the payment, you give up all claims for damages, a pension and compensation for pain and suffering arising from the medical event, for damage that appeared before the day you filed the application (Article 67zc paragraph 2 of the Patients’ Rights Act). This is the most important decision in the whole procedure.

Route two: a claim in court

The hospital or clinic is liable for the fault of the doctors, nurses and other staff it entrusts with treatment (Article 430 of the Civil Code). A doctor in private practice is liable for their own fault (Article 415 of the Civil Code). The claim covers:

• all costs resulting from the injury, with the right to ask for treatment costs in advance (Article 444 § 1 of the Civil Code);
• a pension if you lost the ability to work, your needs increased or your prospects decreased (Article 444 § 2 of the Civil Code);
• compensation for pain and suffering (Article 445 § 1 of the Civil Code);
• after the death of a patient: costs of treatment and funeral, a pension for dependants, damages for a significant deterioration of the family’s situation and compensation for the loss (Article 446 §§ 1 to 4 of the Civil Code).

Medical questions in court are answered by an expert appointed by the court. The court sets compensation for pain and suffering as an appropriate sum, without tables or caps.

Which route to choose

Your medical records

You have the right of access to the medical records concerning your health and the treatment you received (Article 23 paragraph 1 of the Patients’ Rights Act). The hospital or clinic makes them available to the patient, the patient’s legal representative or a person authorised by the patient (Article 26 paragraph 1 of the Patients’ Rights Act). After the death of a patient, the records are also made available to a close person, unless another close person or the patient during their lifetime objected (Article 26 paragraph 2 of the Patients’ Rights Act). If you authorise me, I request the records on your behalf.

Time limits in court

For a court claim, the period is three years from the day you learned, or with due care could have learned, of the damage and of the person liable (Article 442¹ § 1 of the Civil Code). For injury to the person it cannot end earlier than three years from that knowledge (Article 442¹ § 3 of the Civil Code). The details are in the guide on time limits.

Questions people ask