No. 25




Civil and Criminal Liability of Providers of Health Care Services

  • Maarja Lillsaar

    Private Law Analyst, Legal Information Department of the Supreme Court

Results of the analysis of court practice show that a great number of disputes on providing of health care services never get to court. According to the EU health portal, it is estimated that 8–12% of hospitalized patients suffer in the course of treatment because of deviations in health care services.

The provider of health care services is responsible for deviations connected with health care services. The liability of providers of health care services can be both civil and criminal. Civil liability in its turn is divided into two: contractual liability and delictual liability. Several problems may be encountered in court practice when determining liability.

Large number of violations never get to court and are either settled out of court or the person concerned refuses to submit any claim. Besides that, it is rather difficult for a patient to prove in civil procedure that a breach of contract has been committed by a provider of health care service. Therefore it could be assumed that the number of applications for commencement of criminal proceedings in cases concerning the providing of health care services would increase, but at the moment the increase in the number of such criminal cases has not been noted in court practice (at the same time, there is no information about the number of applications for commencement of criminal proceedings in connection with health care services).

In the case of civil matters, the disputes concerning providing of health care services were mostly solved on the basis of contractual provisions. In court practice, breaches of an obligations arising from the contract on providing health care services in most cases consist in errors in diagnosis and treatment. In the identification of errors, the courts solving civil matters almost exclusively relied on the conclusions of the Expert Committee on the Quality of Healthcare. It should be emphasized here that in criminal cases it is not allowed to use the decision of the Expert Committee on the Quality of Healthcare as evidence. An expert analysis has to be conducted.

In the cases of breaches of contracts on providing health care services, mostly the compensation for damage is claimed, incl. compensation for both patrimonial and non-patrimonial damage, but imposing of compensation does not happen not very often because the plaintiff is unable to prove the violation of obligation.

In court practice, very few decisions concerning the breach of providing health care services have been made in criminal matters – only three decisions in total. Therefore it is not possible to make any general conclusions on the basis of those decisions. But in the criminal matters reviewed, the content of prosecution was delict of negligence committed at least partially through inactivity.

Full article in Estonian