Access to justice must improve, said recently Ombudsman Reinier van Zutphen in Nieuwsuur.
Medical error
His argument was primarily concerned with the legal relationship between citizen and government, but this same goal also applies to the citizen who wants to take on the hospital where he was harmed. Proving a medical error is difficult, however, it involves a lot of work: medical records are requested, meticulously sorted out and discussed with the medical advisor. Then the legal translation must be made. All this takes time. And time costs money, which must be paid for by the victim in the first instance. And this is just the beginning. If a hospital insurer does not immediately accept liability, much more will have to be invested financially, for example to obtain a report from a medical expert that will serve as evidence. That expert, of course, must also be paid.
Expert Report
People who qualify for free legal aid also have to make a financial sacrifice. Although they do not have to cover their lawyer's fees, they do have to pay the medical advisor and a medical expert, who has become increasingly expensive in recent years. Whereas in the past you could get by with a favorable loan of €3,000 - in this context obtainable from the Legal Aid Board - nowadays such an expert report quickly costs at least €5,000.
In my own practice, I recently again encountered the impotence of a less fortunate client. In a case, an expert report was jointly obtained with contents favorable to my client about the doctor's actions. Yet the hospital's insurer does not want to acknowledge the error, but only wants to see if the case can be settled. For my client this means that, for the time being, he has to bear the costs of the expert report himself, and they were not bad: over €9,000. Just pay that from a ‘welfare allowance’.
(Partial dispute) proceedings
Then go to court, you might think. But that too is easier said than done, because even with a favorable report, legal action carries such a financial risk that it deters. And the hospital will soon defend itself with its own expert report, for which it does have the financial resources. Obtained because my clients also pay taxes that benefit hospitals.
Hospital pays
It is a bleak conclusion, but without inexhaustible financial resources, it is difficult to win a nuanced medical liability case. Given a hospital's current funding structure, access to justice in medical liability cases could already be improved a bit by stipulating that the hospital should always pay in full for the expert report - arrived at by mutual agreement or through the courts!
Amsterdam, July 1, 2021
If you have questions about this blog, please contact the author, Mirella Hartman.