It was recently revealed that not only can financial institutions fail, but hospitals are not as stable as they sometimes appear. It was buzzing with news reports about medical institutions going bankrupt or applying for a moratorium. Patients in the middle of a treatment process suffer, but it is also an uncertain time for victims of medical error who are seeking compensation from the hospital. What are the rights of these personal injury victims and how can they exercise them?
Medical malpractice in delivery of Ms. Jansen before bankruptcy
Let's meet Ms. Jansen who was a victim of medical error at a, now bankrupt, hospital. During childbirth, the gynecologist acted negligently, leaving Ms. Jansen suffering from nerve injuries in the pelvic area and annoying incontinence symptoms. There is serious personal injury, as well as consequential financial loss. Let us assume that liability is established and Ms. Jansen is entitled to damages, including damages.
Ms. Jansen held the hospital liable before the hospital went bankrupt. In this case, Ms. Jansen probably has nothing to worry about. This is because the hospital forwarded the liability claim to its insurer before the bankruptcy and reported the claim there. Ms. Jansen can now turn directly to this insurer and invoke the so-called ‘direct action’ (Article 7:954 BW). The insurer will now have to pay the compensation it would have to pay to the hospital - as its insured - directly to Ms. Jansen. That way, the compensation payment will not fall into the bankruptcy estate, preventing payment problems.
Birth injury to child Ms. Jansen before bankruptcy
Suppose that it later turns out that not only did Mrs. Jansen suffer personal injury, but that over time it turns out that her baby also suffered damage as a result of medically negligent treatment, namely brain damage due to oxygen deprivation at birth. Now Ms. Jansen is holding the hospital liable on behalf of her child, after the hospital went bankrupt. Again, the insurer can usually be sued directly on the basis of the ‘direct action’ because the damage occurred before the bankruptcy. This may be different if the hospital has a so-called ‘claims made’ insurance with its insurer. In that case, not only must the damage have occurred during the insured period, but the claim must also have been brought during that period. In that case, Ms. Jansen will be well advised to inquire about the arrangements that the trustee has made with the liability insurer regarding these so-called ‘run-out risks. Should Ms. Jansen receive no response, she may also be able to hold the negligent gynecologist liable. Much depends on the legal relationship between the hospital and the gynecologist and whether the gynecologist is insured.
Mr. Jansen's personal injury after bankruptcy
Should, during Ms. Jansen's final follow-up care at the recently bankrupt hospital, Mr. Jansen fall and suffer injury at this hospital, the situation is different again. In this case, the injury occurred after the bankruptcy, which in practice often means that there is no longer any applicable medical liability insurance (in most policies, insurance ends after bankruptcy). Mr. Jansen can then turn to neither the hospital nor its insurer. The claim of Mr. Jansen will fall into the bankruptcy estate in this case, where it is uncertain to what extent Mr. Jansen will receive compensation. Again, it is possible that the trustee will have reached agreements with the insurer regarding these ‘walk-out risks.
Right to inspect and release medical records in bankruptcy
Finally, victims of medical error often have to rely on the medical information to support their claim. The care provider has a legal obligation to set up and keep medical records. This retention obligation continues to apply even if a healthcare institution has gone bankrupt and if medical records must (eventually) be transferred to another medical institution. In doing so, the privacy of the patient should be protected and the patient should be able to access his or her medical information and demand its release.
Beer advocaten: law firm specialized in personal injury in Amsterdam
At Beer advocaten, lawyers with extensive knowledge and experience in the areas of medical liability. In addition, Beer advocaten has its own medical advisory team, consisting of medical advisors from various backgrounds. Cases such as that of the Jansen family are at our office in good hands.
For questions about this blog, please contact the author, Irene Timmermans.
The names of the characters are fictitious.