Procedural issues and the burden of proof in a claim for damages
Medical negligence is one of the most demanding areas of judicial practice, combining medical data with complex procedural rules. For a patient who has suffered harm, the critical question is not only whether a medical error occurred, but also how that error is proved in court.
Of particular importance is the burden of proof – that is, which of the parties is required to establish the critical facts of the case.
What constitutes medical negligence
Medical negligence exists when a physician fails to act in accordance with the recognised rules of medical science (lege artis), as a prudent and diligent physician would have acted under the same circumstances.
Negligence may consist, indicatively, of:
- an incorrect or delayed diagnosis;
- defective execution of a medical or surgical procedure;
- the wrong choice of treatment;
- failure to inform the patient and obtain valid consent.
Lack of the patient’s informed consent constitutes an independent unlawful act, irrespective of whether the medical outcome was successful.
When civil liability of the physician arises
Civil liability of the physician arises when the following are cumulatively present:
- unlawful conduct;
- fault (negligence);
- harm to the patient;
- a causal link between the medical act and the harm.
Liability may be founded:
- either under the general provisions of the Civil Code;
- or under Article 8 of Law 2251/1994 (consumer protection), which also applies to medical services.
The burden of proof in a medical trial
In medical negligence cases, the law provides for a more favourable allocation of the burden of proof for the patient.
Specifically:
The patient must prove:
- that they received a medical service;
- that they suffered harm (physical and/or psychological);
- that there is a causal link between the medical act and the harm.
The physician bears the burden of proving:
- that they did not act unlawfully;
- that there was no negligence;
- that they complied with the rules of medical science (lege artis).
In this way, the law takes account of the difficult position of the patient, who usually has no access to medical data or specialist knowledge.
What this means in practice for the compensation claim
In practice, the patient is not required to describe with medical precision the specific error within the complaint. It suffices to set out:
- the history of medical treatment;
- the harm suffered;
- the temporal and substantive connection between the harm and the medical act.
Further technical specification emerges during the trial, through medical opinions and expert evidence.
Medical negligence in public hospitals
In cases of defective medical acts in public hospitals, liability is directed against the State and not against the attending physician – unlike what happens where the error arises during treatment in a private clinic. Different procedural rules apply in those cases, making sound legal guidance from a specialist lawyer all the more essential.
The importance of timely legal advice
Medical negligence cases require:
- prompt collection of medical records;
- correct legal assessment of the facts;
- knowledge of the specific case-law and procedural rules.
Early contact with a lawyer experienced in medical negligence cases is decisive for the successful pursuit of compensation and monetary satisfaction for moral harm.
FREQUENTLY ASKED QUESTIONS (FAQ)
When does medical negligence exist?
When the physician deviates from the rules of medical science and harm is caused to the patient.
Do I have to prove exactly what the medical error was?
No. It is enough to prove the harm and its connection to the medical act. The burden shifts to the physician.
What compensation can I claim?
You may seek compensation for material damage, loss of profits and monetary satisfaction for moral harm.
Do the same rules apply in a public hospital?
Not exactly. In those cases the action is directed against the State and special rules of administrative law apply.
Are there time limits?
Yes. Claims are subject to prescription, so timely legal advice is critical.
WHY CHOOSE OUR FIRM
- Expertise in medical negligence cases
- A combined legal and medical approach
- Careful assessment of every case before any litigation step
- Discretion and personal handling of every matter
If you have suffered harm from a medical error, sound legal guidance from the outset can determine the outcome of your case.
Do you believe you have been the victim of medically negligent conduct?
Contact us for a responsible legal assessment of your case.