Medical law

(This is a text I translated from Polish to English / Tekst przetłumaczony z języka polskiego na angielski)
 Source text / Źródło:

As a result of civil lawsuits, the courts award compensation for people with serious infections

Medical law: Polish civil courts give high compensation for people who suffer from serious infections or incurable diseases. Cases are resolved through civil lawsuits because criminal trials are too complicated.

Criminal trials for infections are rare not only in Poland but all around the world. Obtaining a conviction requires strong evidence which is difficult to collect.  Tracking down the perpetrator and finding witnesses is not enough.

Article 161 of the Penal code contains the basic rule on such offences . It defines the responsibility for exposing a person to  venereal, infectious, serious, incurable and other life-threatening diseases.

To use this article, prosecutors must prove that the victim was healthy prior to being infected, which is practically impossible. They also have to prove the perpetrator’s acted with intent, which means that he or she either intended to transmit the infection, or was aware of the possibility.

It is possible that in the near future Mr Simon M, a refugee from Cameroon, will face allegations of exposing others to HIV. The list of his victims is getting longer, however the case is still being handled by the police and prosecution, and it is difficult to predict how compelling the evidence gathered by the prosecution will be. Law experts argue that Mr Simon M’s offence should be qualified as exposing others to HIV or causing severe damage to human health.

Hospitals are frequently charged with causing infections. This type of case does not always result in a conviction, as it is hard to accuse specific people and prove criminal responsibility. For this reason medical facilities bear civil and material liability.

Infections during treatments or medical procedures are a tort under the Civil Code. Persons guilty of such an act should be liable for all material damages. The court usually grants cash compensation to the victim. Compensation primarily covers all costs of treatment and related procedures.

If, as a result of infection, an infected person becomes wholly or partially unable to work, they will be entitled to a pension, which can compensate for their increased needs and reduced future prospects.

Relatives of a person who died due to an infection can also claim a pension. The pension is meant to cover their loss of income and to compensate for a significant decrease in their living standard.

These situations are difficult to prove. It is not easy to prove where the infection happened and even how it happened, for example as a result of sexual intercourse. This is because symptoms only become apparent after a certain period of time.  In cases like this, Courts use the concept of presumption of fact. For example, if a person’s blood tested clean in the hospital before surgery, and the person became infected, it can be assumed that the person was infected in the hospital. To avoid responsibility the hospital would have to prove that this was not the case.

The Supreme Court in a verdict on 13 June 2000 (ref. V CKN 34/00) in regard to HIV infection, stated that in such matters it is almost impossible to prove exactly when and how the infection entered the human body, and that it is unrealistic to expect to obtain such information.

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