Medical professionals in Slovakia must adhere to current professional standards. Failure to do so may result in administrative, civil, or criminal liability. Patients have several options how to proceed in the event of alleged medical malpractice.
The least frequent – and least effective – of the available options is to file a complaint directly to the healthcare provider. This makes sense only in cases involving large providers such as hospitals, and not in cases involving a general practitioner or specialist practice operated by a sole practitioner.
In most cases, the patient files a complaint to the Healthcare Surveillance Authority (HCSA), which is a specialized public administrative body empowered to investigate whether healthcare services were delivered properly. The HCSA’s review involves a board of consulting physicians and the scope of the review is limited to medical records only. No other facts are taken into account. The patient is not a party to HCSA proceedings and is informed only whether or not healthcare was provided in accordance with currently established standards. In the majority of cases, patient complaints are unfounded. In 2017 alone, more than 80% of patient complaints were rejected. Data for other years shows approximately the same proportion of unfounded complaints.
If malpractice is found, the HSCA initiates administrative proceedings to impose sanctions against the healthcare provider. These sanctions can include fines (up to EUR 3,319 for natural persons and EUR 9,958 for legal entities) and a ban on providing healthcare services for up to one year (in the case of a legal entity, the ban is imposed on an expert representative of the legal entity who is a medical professional). The HCSA may also impose measures to remove any identified deficiencies or oblige the sanctioned healthcare provider to adopt measures to remove such deficiencies. After an investigation is closed, the HCSA may reopen the case, even repeatedly, if new facts are available and such facts could have an impact on the investigation’s outcome. The statutory limit for reopening a closed case is one year.
In recent years there has been a discernible increase in the number of criminal complaints for alleged medical malpractice. The rationale behind this trend is that, unlike in an HCSA proceeding, in a criminal proceeding the patient has the status of a damaged party. Under the Slovak Criminal Procedure Code, the status of a damaged party is strong and includes, inter alia, the right to propose or submit evidence, the right of access to the case file, and the right to compensation. Another factor is that while decisions in criminal cases of alleged malpractice rely on expert opinions, the costs of these expert opinions are borne by the state, which makes this option economically feasible and attractive for patients.
In most cases, criminal proceedings are also significantly faster than civil proceedings. The HCSA itself usually lodges criminal complaints in the most blatant cases of malpractice. Additionally, under certain circumstances a criminal court may rule on damages as part of a conviction for medical malpractice. Such rulings are exceptional, as a damaged party’s claim for compensation is usually referred to a civil proceeding.
Civil proceedings in medical malpractice cases are usually initiated after a positive HSCA ruling or successful conviction. Slovak law defines two different types of claims for compensation relating to medical malpractice: compensation for suffered pain and disability, which may be claimed by the damaged person only; and compensation for the infringement of personal rights, which, inter alia, includes personal health. These claims are independent.
The calculation of a one-time lump-sum compensation for suffered pain and disability is based on a point scoring system under special legislation. Each specific damage is assigned a certain number of points, and the resulting sum is multiplied by the monetary value of the points, which is updated annually by the Ministry of Health. The point value is set at 2% of the average monthly salary as determined by the Statistical Office of the Slovak Republic for the calendar year preceding the year in which a claim is made. The maximum number of points that can be awarded is in the range of 11,000–12,000.
Damages for an infringement of personal rights may be requested not only by the damaged person but also by his/her close relatives. The highest award to date was a 2013 award of EUR 499,608 for a botched nasal septum operation resulting in the persistent vegetative state of a 15-year-old boy.
By Peter Kovac, Head of Lifesciences & Healthcare, Kinstellar Bratislava
This Article was originally published in Issue 6.6 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.