Patients and their relatives, like any other persons who believe they have suffered damage due to improper treatment, have the right to compensation. Since the beginning of 2020, a “no-fault” compensation model has been in effect, aimed at simplifying the right of patients and their relatives to receive compensation for improperly provided treatment.
Read more “It was crazy”: the national team played the longest set in volleyball history
Under the new procedure, the process sought to eliminate healthcare institutions, in other words, to abolish “defensive medicine.” Until then, the defendants in such cases were healthcare institutions (hereinafter – HCI), replaced by the State of the Republic of Lithuania represented by the State Health Insurance Fund under the Ministry of Health (hereinafter – SHIF).
One of the key questions is who has the right to compensation for improperly provided healthcare services. First of all – the patient who received healthcare services. In the event of the patient’s death, the right to compensation belongs to – minor children (adopted children), spouse, incapacitated parents (adoptive parents) or other actual incapacitated dependents, as well as the deceased patient’s child born after their death (for material and non-material damage).
Previously, the law limited the circle of persons entitled to compensation. However, the Constitutional Court in 2024 clarified that a law restricting persons’ right to compensation contradicts the Constitution of the Republic of Lithuania. Thus, currently the right to compensation belongs to all persons who had an especially close and intimate relationship with the patient (e.g., the patient’s cohabitant with whom the patient lived unmarried or other persons).
The closeness and intimacy of the relationship between the deceased patient and these persons is decided by the Commission for Determining Damage to Patients’ Health (hereinafter – the Commission), and later by the court, based on data submitted by these persons or their representatives confirming the especially close and intimate relationship with the patient (considering the intensity of communication, the nature of caring for each other, and other circumstances).
Where to apply for compensation
The Law on Patients’ Rights and Compensation for Damage to Health (hereinafter – the Law) establishes a strict procedure on where and within what time frame the patient or their relatives must apply for compensation. The patient or their relatives who believe their rights have been violated must apply for compensation within three years from the day they learned or should have learned about the damage caused by medical errors. If this deadline is missed for important reasons, in exceptional cases, the court may renew it. However, essentially, if this deadline is missed, the right to compensation, even if damage was caused, is lost.
If this deadline is missed for important reasons, in exceptional cases, the court may renew it.
The law establishes a mandatory pre-trial dispute resolution procedure. In other words, before applying to court, it is mandatory to apply to the Commission. The same three-year deadline applies to the application to the Commission.
Upon receiving the patient’s Application for Compensation, the Commission usually involves a specialist consultant from the relevant medical field, who provides a qualified opinion on the questions submitted to the Commission regarding whether errors were made during treatment and whether those errors caused damage to the patient. The Commission makes a decision indicating whether it recognizes that damage was caused to the patient or their relatives, or that the damage was unavoidable, and specifies the exact amount to be compensated.
If the patient and other persons entitled to compensation do not agree with the amount of compensation specified in the Commission’s decision or if compensation was not determined, within 30 days from the day they learned or should have learned about the Commission’s decision, they have the right to apply to a court of general jurisdiction for compensation for damage to the patient’s health in accordance with the Civil Procedure Code.
In such cases, the defendant is the state, represented by SHIF, and the court, when deciding on compensation for damage to the patient’s health, does not assess the fault of the healthcare institution or the healthcare professional who caused the damage, but evaluates whether the treatment actions or inactions caused damage to the patient’s health and whether this damage is not unavoidable.
Amount of compensation
This question is most relevant to persons who have suffered damage due to medical errors. However, the answer to it is probably the most complicated.
Read more Taiwanese lawmakers approved a $7.6 billion drone budget
Patients and their relatives who have suffered damage have the right to compensation for material and non-material damage. The Commission decides on compensation for material and non-material damage during the pre-trial dispute resolution process. At this stage, the damage assessment mechanism is quite clear because the Commission is bound by the Procedure Description for Compensation of Material and Non-material Damage Arising from Damage to the Patient’s Health approved by the Government of the Republic of Lithuania and has no room for local improvisation.
Material damage is determined by the Commission based on direct losses arising from the damage caused to the patient (expenses incurred for healthcare services, medicinal products, and medical devices (instruments) and other justified and necessary reasonable expenses directly related to the damage (patient care and/or health recovery, and/or others). Reasonable, necessary, and justified expenses for healthcare services, medicinal products, and medical devices (instruments) are compensated.
Indirect losses (lost income) are also assessed. Lost income includes only those earnings that were reasonably and realistically expected before the damage and were not received because of the damage caused to the patient (i.e., net average wage), other declared income minus expenses incurred to obtain it and payable taxes. Indirect losses (lost income) of other persons entitled to compensation are also compensated.
The amount of non-material damage compensated is determined by the Commission as follows: according to the Non-material Damage Compensation Criteria established in the Procedure Description and the points table (hereinafter – the table), for each criterion met by the damage, the points specified in the table are assigned.
When assigning points, the patient’s health condition on the day of the application submission is evaluated based on information in the patient’s medical documents and decisions establishing the patient’s disability, remaining working capacity level, and special needs. The Commission sums the assigned points and multiplies them by the point value, which is 100 euros.
It is obvious that such a procedure for determining the amount of damage is unfair because the Points Table and the 100 euro point value were approved by the Government in 2020 and have not changed since. Thus, the compensation amount for similar non-material damage is calculated identically in 2020 and now, and its amount has not changed considering currency depreciation and other economic factors.
Considering that the Commission follows the non-material damage amounts set by the Government in 2020, in the vast majority of cases, it is advisable to apply to court for a claim for higher non-material damage compensation after the Commission recognizes the patient’s right to compensation. It is important that the court, when deciding on the amount of damage, is not bound by the Procedure Description approved by the Government. Unlike the Commission, the court determines the amount of non-material damage based on the law and established cassation court practice.
Moreover, in one case, the cassation court stated that predetermined and uniformly applied non-material damage amounts cannot exist due to the constantly changing economic situation in Lithuania. Court practice notes that when deciding on non-material damage compensation, the constantly changing economic living standard of the state must be taken into account.
In summary, the “no-fault compensation” model is still very young, having been in effect only since 2020, although there are certainly areas for improvement, the overall process works quite well.
However, regarding non-material damage amounts, they are currently unjustifiably low, so it is necessary to review and adjust the state-established compensation criteria and the point values as soon as possible. It would also be desirable for courts, when assessing the amount of non-material damage, to better reflect the interests of the patient or their relatives so that the compensation amount compensates as much as possible for the experienced suffering and losses.
Read more After the storm in Panevėžys district, generators were used: some residents still do not have water
