“Injury without Fault”: Lithuania strengthens patient rights Part 1

New Lithuanian model on compensation of damages leaves the fault of physicians out of consideration.

 1. In the past claims for compensation were seldom successful.

Many claims for compensation of damage to the health of patients had little real chance of success. Patients had to provide evidence that the damage had been caused by the fault of a specific health care professional (HCP).
Evidence took the form of medical records and documents, which were difficult for them to obtain.
Health care organizations and professionals were always in a conflict of interest in all these cases.
As a consequence, patients underwent lengthy, costly and un-successful court proceedings.
Close relatives enjoyed only limited rights to claim damages for patients’ pain and suffering.

2. The situation has changed since 1st January 2020

Much of this change is due to an amendment to the Law on Patient Rights and Compensation for damage caused to health.
Under the simplified procedure patients no longer need to overcome so many obstacles when claiming compensation.
No longer need they produce evidence of fault on the part of a specific HCP. Compensation for damage can now be claimed whenever the patient or a close relative believes that damage to the health of a patient stems from medical treatment.
A seven-person Commission at the Lithuanian Ministry of Health (representatives of competent institutions, HCPs and representatives of organizations protecting patients’ rights) will decide all claims in out-of-court procedure.

3. Who can bring a claim before the Commission?

Besides patients themselves, the following close relatives of a deceased patient can file a claim for compensation of damages:
• spouses and minors, disabled parents and persons for whose maintenance the patient is responsible – material damages as well as compensation for pain and suffering;
• parents and adult children capable of work are limited to compensation for pain and suffering.

4. What is the limitation period for claiming compensation?

Compensation in the form of damages can be claimed within three years from the date when the patient or close relatives knew or could have known that damage was caused to the patient’s health.

5. What procedure needs to be followed when claiming?

A claim must be filed in a simple procedure either directly with the Ministry of Health or via postal mail.
The claim must contain the following data:
• damage caused;
• amount of compensation, with evidence for the concrete amount;
• circumstances substantiating damage and compensation;
• in the case of claims by relatives – evidence of the relationship with the patient, and on the need for maintenance / maintenance relationship.
But, unlike in the past, no supporting medical documents need be filed.

6. What are the Commission’s functions?

In deciding claims, the Commission undertakes the following tasks:
• collection and request for necessary documents;
• collection of necessary statements for HCPs;
• if necessary – request an expert opinion.
In simple cases a decision is taken in just one session of the Commission. In more complicated cases the Commission might request an expert opinion. In any case a decision has to be adopted no later than 2 months from the day of filing a claim. In extraordinary cases this period may be prolonged for one more month.

7. What damages can be compensated?

Damages caused by treatment that could have been avoided are compensable.
Damages do not qualify for compensation if caused by:
• complications or as a result of pre-existing diseases/conditions, if the damage was unavoidable;
• diseases /conditions resulting from specific individual characteristics of the patient;
• diseases /conditions resulting from consumption of medicinal products in line with the conditions of use;
• wilful or grossly negligent non-observance of any comprehensible safety measure or of any duties on the part of the patient.
In the frame of material damage patients receive compensation for all costs they incur.
Besides compensation of material damages, compensation for pain and suffering may be claimed. The amount of compensation will be covered in Part 2 of this article.

8. Where do the resources for compensation come from?

Payments will be sourced from the finances of the Lithuanian State Health Insurance fund.
The payment is to be made no later than 30 days from the day a positive decision is adopted.

9. Can I take action in case of a negative decision?

If the Commission does not accept a claim for consideration, a complaint can be filed with the Vilnius Administrative District Court.
If the claim was considered but no compensation was awarded, the patient or relatives can apply to the competent civil court and claim compensation under regular civil court procedure.

10. How about damage caused before 1st January 2020?

All damage caused before 1st January 2020 will be decided by the newly formed Commission, although based upon the procedure and principles in force until 1st January 2020.

Our bnt attorneys in CEE office in Vilnius / Lithuania looks forward to replying to all further questions you might have.

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