24-04-2013

Medical Malpractice And Financial Compensation

Authors

  • Artion Pashollari, Attorney at Law
    Partner at Artion PASHOLLARI Law Office

Under the Penal Code of the Republic of Albania, medical malpractice, as well as other forms of medical mistreatment or medical abuse, constitutes a criminal offence. According to the Albanian legislation, any act or omission by medical staff or assistants, including nurses or physician assistants, risking the life, health and well-being of the patients, is to be considered as medical malpractice.

Which is the legal basis regulating the medical professions in Albania?

Albania has enacted a good number of laws for the purpose of regulating the medical professions. Health professionals are grouped in the Medical Association, which was established by Law No 8615 of 1 June 2000 ‘Concerning the Medical Association in the Republic of Albania,’as amended. Under Article 1 of the above- mentioned Law, the Medical Association is a professional organisation for health professionals and other practitioners in their field to represent their common interests, and regulate relations among them to the benefit of the public. According to Article 4, the Medical Association is the organisation that protects the interests of the public against medical malpractice or unethical medical behaviour. The orthodontist and the dentist professions are regulated by Law No 9928 of 6 June 2008 ‘Concerning dental health service in the Republic of Albania,’ as amended. The dental health service in Albania is supervised by the Dentistry Inspectorate. As well as the Medical Association, such Inspectorate is responsible for overseeing the performance of the dental service, which, under the Albanian legislation, is required to be offered by a public or private provider. However, actually, such service is mostly delivered by private providers. The nursing profession is regulated by Law No 9718 of 19 April 2007 ‘Concerning the Nurses’ Association in the Republic of Albania.’ Article 1 of the above-mentioned Law is intended to regulate the legal status of professions, including nursing, midwifery, and physiotherapy, and of the Association itself. In Albania, professionals, including physicians, orthodontists, dentists, nurses, midwives, and physiotherapists, are not able to practice unless they are members of the relevant association.

Under what circumstances is medical practice considered to be malpractice?

Under the Albanian jurisprudence, medical malpractice refers to all such cases, where the medical staff, including all of them mentioned above, fails to provide or has provided wrong medical treatment to a person in need of medication, or their services. An act reaches the level of medical malpractice when it has consequences for the health of a person under treatment, which consequences include risk of harm to life, permanent injury to the health of the patient, or the death of the patient. As already stated earlier on, all these acts or omissions are considered to constitute a criminal offence, which, depending on the effects they produce, is punished with a fine or imprisonment of up to seven years. Such types of criminal offences, commonly regarded as having been committed through gross negligence, are covered by Articles 93 through to 96 in Section 5 of the Penal Code ‘Criminal offences endangering life and health due to pregnancy interruption or failure to help. The Penal Code, however, covers only a fraction of the cases in which a medical practice may be referred to as medical malpractice. For a deeper insight into the matter, reference could be made to Law No 8615, Law No 9718, Law No 9928, and the Code of Ethical Conduct and the Code of Medical Deontology. Proceeding from the above-mentioned acts, medical malpractice also includes violation of medical ethics, violations of the principles of the Code of Ethics, inaccuracy and abuse of the medical records, release of inaccurate medical prescriptions or prescription without cause of drugs, use of uncontrolled drugs or uncontrolled blood, and failure to observe specific medical procedures, except in those cases where such acts are justified by the circumstances. Hence, even in cases involving no consequences for the health or the life of the patient, acts or omissions by the medical staff, as specified in the foregoing, are referred to as medical malpractice, and are subject to administrative sanctions. In conclusion, our reading of the provisions of the Albanian legislation is that medical malpractice refers to all acts or omissions by medical personnel, including physicians and other practitioners in their field, that may have consequences for the health or the life of the person under treatment, or to negligence to enforce the regulatory legislation and abide by the Code of Ethics and the Code of Medical Deontology.

What criteria apply for medical malpractice to be classed as a criminal offence?

As stated above, acts or omissions by the medical personnel referred to as medical malpractice are deemed to constitute a criminal offence, when they have consequences for the life or the health of the patient. The Courts considering the severity of cases and the consequences that such acts or omissions have had for the life or the health of the patients, have imposed penalties in accordance with the provisions of the Penal Code. All acts that, as per the above criteria, are referred to as medical malpractice, but have not had consequences for the health or the life of the patients, are not to be considered as criminal offences. Instead, they must be subject to administrative sanctions imposed by the regulatory bodies and professional orders supervising the activity of physicians or other practitioners in their field, as mentioned earlier on.

What is the approach taken by the professional orders to medical malpractice?

Overall, the professional orders, including the Medical Association and the Nurses’ Association, look carefully at the cases submitted to them for consideration. The cases are looked into by a group of experts, which takes stock of all the events, the conduct of the medical personnel, the prescribed therapy, and the result of all of them. However, in our opinion, lack of medical protocols approved by the Ministry of Health allows for various interpretations or speculations. To the best of our knowledge, severe administrative penalties have been meted out only in a few medical malpractice cases, and indeed, the harshest sentence, namely, suspension of license up to three years, has been imposed on few of the physicians or other professionals.

What is the approach taken by the Albanian courts to medical malpractice?

Generally speaking, the Albanian courts give very careful consideration to medical malpractice cases. One must point out that the probability of success in a medical malpractice case lies with the prosecution. When a case is pursued before the prosecuting attorney’s office by the patient himself or by his relatives, the said office conducts investigation taking into consideration all the events, the conduct of the medical personnel, the prescribed therapy, and the impact of all these elements on the consequences for the life and the health of the patient. The forensic report is a very important document, basically, outlining facts instrumental in determining whether it is a medical malpractice case or not. This document is drawn up by a group of experts, who work for the Forensic Institute, with such Institute being subordinate to the Ministry of Justice. Such reports are written in a relatively objective and very professional way. However, we remain of the opinion that lack of medical protocols approved by the Ministry of Health makes room for various interpretations or speculations. Actually, the general medicine theory, conducive to interpretations in many cases, is largely instrumental in making the interpretation and writing the forensic report. In many cases, experts have held different opinions about the patients’ medical treatment provided by the medical personnel accused of having committed acts of medical malpractice. In the cases brought before the Court, sentences have overall been imposed on the medical personnel. Depending on the severity of the facts, the judges have imposed sentences of imprisonment of up to three years. The conclusion of medical malpractice cases by the Court allows the damaged persons to file civil claims. The institutions, whether private or public, may receive claims for financial compensation lodged by the parties injured through medical malpractice. However, even though very serious malpractice cases, including the infection of different patients with HIV/AIDS or Hepatitis C, as a result of blood transfusion, have been reported, no one among the medical personnel has hitherto been charged with or convicted of such fact.

What kind of financial compensation the injured person may claim?

Under the provisions of Law No 10107 of 3 March 2009, health care is delivered by private or public providers, which are registered with the Ministry of Health as service providers. Such institutions and their personnel are responsible for the damage that may cause to the patients. Pursuant to Article 618 of the Civil Code, the employer is responsible for the damage that third parties have suffered as result of acts or omissions by his employees. According to Articles 608, 625, 640, 641, and 642, the injured person is entitled to seek financial compensation for the physical or psychological damage suffered through malpractice, pecuniary damage, including the reduced ability to work and generate incomes normally, as well as other expenses incurred for the purpose of reducing or handling the consequences as a result of medical malpractice. As well as the person directly injured, his relatives may also make claims and seek financial compensation for the psychological damage suffered through the injury to or the degradation of the health, or the risk of harm to the life of their relative. In case that the patient has lost his life as a result of medical malpractice, the relatives of the deceased may lodge claims for compensation for pecuniary and psychological damage. Likewise, the Albanian jurisprudence, based on the Unifying Decision No 13 of September 2007 of the United Colleges of the Supreme Court, provides for another kind of damage for which financial compensation may be offered, which damage concerns the moral damage that may be claimed by the patient himself or his relatives, as well as the relatives of the patient in case of the latter’s death. The criteria for determining the financial compensation includes the age of the patient, the extent of the injury, the incomes of the deceased or injured person, the reduced ability to work and generate incomes, the expenses made by the injured person or his relatives to help prevent further deterioration of his condition, or handle the consequences of the medical malpractice, as well as the psychological and moral impact of the events on the life of the injured person and his relatives. In the event of extra judiciary settlement, the amount of damages is usually calculated by the damaged party. In case that the medical institution falls short of satisfying the demands of the damaged party, the damaged person or his relatives may bring their case to court. In this case, damages are estimated by an expert, appointed by the Court at the request of the claimant.

What is the approach taken by the Albanian courts to the financial compensation as a result of medical malpractice?

To the best of our knowledge, in the course of judicial practice, the Court has awarded claimants considerable amounts by way of financial compensation, varying from EUR 40,000 to EUR 200,000. With reference to a court judgment finding a medical malpractice case, the Albanian courts will generally tend to decide on granting substantial financial awards. To the best of our knowledge, the very few cases where such award has been denied concern procedural obstacles, mainly, because the claimant has submitted the claim beyond the statutory time-limit, or because of other technicalities. Even in the absence of a Court judgment finding a medical malpractice case, mainly because many cases are not brought before the prosecuting attorney’s office, the Albanian Courts will tend to grant substantial awards. What happens in such case is that the Court will basically make a determination based on the findings contained in the forensic expert opinion drawn up by the Forensic Institute experts. Again according to our opinion, lack of medical protocols leads to a variety of interpretations. The tendency to pay financial compensation, and the fact that, mostly, the physicians and other practitioners in their field, employed with the public sector, do in some cases have another job in the private sector, are not accounted for in the insurance contracts for the purpose of covering the damage that may be caused during the exercise of profession, and certainly, the lack of medical protocols approved by the Ministry of Health, expose the medical staff and all the other practitioners in their field to constant pressure, which, in my opinion, severely impairs their ability to work under normal conditions.

How does the Albanian jurisprudence tend currently to deal with medical malpractice and financial compensation?

Under the Albanian jurisprudence, the relation between medical malpractice and financial compensation is practically speaking at an early stage, yet. Even though there is supposedly a stabilised doctrine governing the financial compensation made for any damage, the lack of confidence in the Albanian judicial system, the lack of denunciations of medical malpractice by the patients or their relatives, and especially, the lack of medical protocols approved by the Ministry of Health, make it very difficult for prosecuting attorneys, the Court, and other law practitioners, or the institutions assigned to supervise the medical personnel or other practitioners in their field, to handle such cases in the course of practice.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

Login

Log in to your account or