Civil liability for medical malpractice in Poland can be either contractual or tortious. In practice, provisions of ex delicto liability are applied. Since June 2010, liability insurance is obligatory for all health care providers that render medical services in Poland. Tortious liability may be attributed to a doctor or a hospital when either's faulty acts or omissions result in the damage. A hospital may also have vicarious liability for injuries caused by its doctors and other medical staff. Fault usually consists of negligence, which is defined as failure to work with due care and diligence while treating a patient. Burden of proof and causation requirements have been modified by case law.
The ex delicto regime provides the injured with a wide scope of compensation including indemnity for both a pecuniary and a non-pecuniary loss. The Civil Code does not assign any statutory limits for the amount of damages that should be paid for personal injury. Generally, pecuniary loss, compensated in full, comprises a single-payment indemnity (for medical care costs and loss of income). When disability is permanent, compensation may be comprised of periodic payments in the form of annuity (pension). Compensation for a non-pecuniary loss is at the court's discretion. The general rule is that its scope should depend, first of all, on the degree of pain and suffering. Further relevant criteria include the victim's age, the degree of the tortfeasor's fault, and the duration of the disease. In view of the most recent case law, damages for a non-pecuniary loss predominantly serve the purpose of compensation. Since 2009, there are additional grounds for moral damages claims under the new Act of Patients' Rights and Patients' Ombudsman.
A draft bill of the amended Act of Patients' Rights and Patients' Ombudsman (of March 2011) proposes an introduction of a no-fault compensation scheme for injuries resulting from medical misfortune, inflicted on patients in the course of hospital treatment. The scheme is to come into force in January 2012.
Medical Malpractice and Compensation in Poland,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol86/iss3/9