Medical negligence is a specialized area which falls under the umbrella of general personal injury cases. Such cases are attributed great significance as they embrace the social norm of the importance of the provision of quality services in health care.
The protection of the human right to life and health care, the right to physical and mental integrity and safety and the right to dignified treatment in health care is afforded in Cyprus pursuant to the Safeguarding and Protection of the Patients' Rights Law of 2004, Law 1(I)/2005 and the Private Hospitals (Establishment and Operation Assessment) Law of 2001.
A patient who alleges medical malpractice shall prove four elements: a) that a duty of care was owed by the professional, b) that the duty was breached by the professional, c) that the patient suffered loss and damage and d) that the damage suffered was caused by the conduct of the professional.
As to the first element, it is rarely an issue in litigation as once a doctor agrees to offer treatment to a patient the duty arises, irrespective of whether payment was made for the services offered by the professional. In this context, hospital authorities are liable for the malpractice of their employees or agents pursuant to their non-delegable duty of care, as the duty is not discharged simply by delegating its performance to someone else.
The degree of care required by law is proportional to the risk created. As the Courts have accepted, if a person holds himself out as possessing special skill and knowledge he owes a duty of using caution in providing treatment. The measure of the duty of care owed to the patient is “the standard of the ordinary skilled man exercising and professing to have that special skill” (Bolam v. Friern H.M.C. (1957) 1 W.L.R. 582).
The burden a litigant has in proving malpractice is that the said malpractice had a direct causal link with the loss and damage suffered by the patient. An error of practice in itself will not alone give rise to negligence. The issue is whether the error in question evidenced a failure of professional competence. Examples of professional malpractice derived by case law include not taking a full medical history from the patient, not paying attention to the complaints expressed by the patient, failing to take measures to further investigate the condition of a patient, failing to take into consideration that the patient did not respond to the treatment initially provided, failing to use available diagnostic means, misinterpreting the examination results of a patient, etc.
Expert opinion is also required in proving medical negligence. The expert’s duty is to assist the Court understand the scientific criteria required for each condition and treatment so that the Court is able to reach its own conclusions on the disputed matters taking into consideration the expert’s assistance on the said matters. Thus litigants shall choose experts with an in-depth knowledge on their subject in order to provide the Court with subjective and justified evidence on the disputed matters.
Proof of damage may include both the physical effects of the malpractice as well as psychological effects on the patient.
It is noted that medical negligence cases shall be brought within 3 years from the date of accrual of the tortious event; claims brought after the said period will be dismissed.
The remedies awarded by the Courts in medical negligence cases are damages. Special damages are awarded for the actual economic loss suffered by the patient such as loss of earnings and the expenses incurred following the damage. General damages are awarded for the pain, suffering and emotional distress suffered. Legal interest on the damages is also awarded; the current legal interest awarded by the Cyprus Courts is set at 5,5% as of 15/10/2008 and at 4% as of 1/1/2015. Additionally, the winning party is awarded the legal costs of the proceedings, calculated on the basis of the scale of damages sought.
General damages have always attracted theoretical elaboration and criticism for the reason that pain, suffering and emotional distress cannot by their nature have a definite price. Quantification lies at the discretion of the Court, which considers each case on its own merits. Guidance is given by preceding case law, however the judge hearing the case retains the discretion to award the amount considered based on the specific circumstances of each case.
Courts take into consideration that the general damages awarded have to be “socially acceptable” (Paraskevaides Overseas Ltd v Christofis (1982) 1 CLR 789). Particularly, in cases of severe damage the Courts have accepted that any amount is “manifestly inadequate” (Mavropetri ν Louca (1995) 1 J.S.C. 66). Case law also suggests a steady increase in the amounts of general damages awarded, a trend that reflects greater sensitivity to human suffering, the agony of disability and mental anguish due to the marginalization from the usual human activities, thus affording significance to the quality of human life.
Cyprus Courts have not hesitated to award significant amounts in medical negligence cases. For instance, over the last years the Courts have awarded the sum of €200.000 for a failed surgical treatment of a compression fracture of the first lumbar vertebra that infected the neurological system of the patient and the sum of €180.000 for a failed laparoscopic gallbladder surgery and improper diagnosis that caused neurological problems to the patient, kidney and liver failure and anemia, among others.
Our law firm has successfully represented various clients bringing medical negligence cases before the Cyprus Courts. In August 2014 a judgment of the District Court of Limassol was entered by which our client was awarded with the amount of €40.000,00 as general damages and €1.606,09 as special damages plus interest and legal costs for failed posterior cruciate ligament surgery that caused damage to the tibial and sensory nerves and paralysis of a muscle. Also, in December 2016 a judgment of the District Court of Limassol was entered by which our client was awarded with the amount of €225.000 as general damages, €209.492 for loss of future earnings and €33.689,45 as special damages plus interest and legal costs. The client was treated in a private clinic which had failed to diagnose that the patient suffered from acute myocardial infarction. The infarction was detected at a very late stage when a large percentage of the heart had already been necrotized. As a result, the client was held totally unfit for work and lost the opportunity to live a normal life.
Specialist advice shall be sought if a person considers that a medical negligence case might have arisen for the provision of professional advice on the merits of the potential case.
The content of this article intends to provide a general guide to the subject matter. Specialist advice should be sought on each particular case. For any further information, please contact Ms. Constantina Zantira.
