Medical liability - Portugal

In Portugal, we have increasingly seen cases in which the existence of error in medical acts is analysed, generating situations of responsibility for health professionals and institutions, with consequences for users and their families.

However, these cases may be framed in different aspects of the law, depending on the bond of the health professional and the medical act itself. The civil liability regime in public hospitals or in private clinics and/or offices is different, given that the State and other Entities' Extra-contractual Civil Liability Regime and the Civil Code rules apply to the former.

On the other hand, the liability for medical "bad practice" is, in most cases, associated to the error, consubstantiating an action or omission that violates the "leges artis" and causes a damage to the patient, falling, mainly, in the field of negligence, although if the action integrates the lack of expertise or prudence the legal consequences are different.

It is also important to bear in mind that the verification of the medical error does not imply tout court the imputation of civil responsibility to the professional who practices it, having to be fulfilled all the assumptions of that institute.

Thus, the correct analysis of the situation and its legal framework is essential for an adequate defense of the associated interests, and Belzuz Advogados has professionals with extensive experience in the analysis of situations of this nature, following the processes both in the extrajudicial and judicial phases.


 The Medical Liability department offers global advice in the following areas:

Medical negligence

By medical negligence, we mean those actions / omissions of health professionals that cause harm to a patient; not performing an x-ray in the correct manner, or not performing a CT scan before severe symptoms, delaying an operation more than would be prudent, or performing a surgical intervention incorrectly, are typical examples of medical negligence.

Medical negligence can be grouped into two major groups: errors / delays in treatment and errors / delays in diagnosis.

The consequences of medical negligence are primarily death, injury and/or prolonged recovery / convalescence time. In addition, the fact of having been a victim of medical negligence supposes additional psychological suffering; this is what is defined as moral damage. The injury may have been suffered by the patient, or by a close relative of the victim.

In Portugal, we have a National Health System that is recognized worldwide and despite the professionalism of our doctors, nurses and other health professionals, the overload of the system and the underfunding of means, are behind most of the medical negligence that occurs in our country.

When an injury (whatever it may be) occurs, the Health Administration (or its insurer) must compensate the injured patient; this is called medical liability.

When claiming compensation for alleged medical negligence, the technical and legal feasibility of the claim must be checked in advance.

To this end, Belzuz Abogados SLP - Sucursal em Portugal, puts at your disposal our team of lawyers with extensive experience in this area of activity, to verify the viability of your complaint and a firm of experts who will study the technical and specialized viability of your case.

Claiming compensation for damages is a matter of justice. Reporting medical malpractice does not have to be to the detriment of health professionals who work with a high level of dedication.

In addition, filing a complaint for care with problems also serves to ensure that the Health Administration (or the particular hospital in question), do not make the same mistake again, and improve the quality of care, which will be in everyone's interest.

Administrative route

In Portugal, much of the health care provision is provided by the public sector, namely within the network established by the National Health Service (SNS).

Within the extended healthcare network, the division between the public and private sectors is distinct, given the existence of numerous private healthcare providers in areas such as palliative care and senior homes. In this sense, if the facts that are the object of the complaint have occurred in the public sphere, the person responsible for the damages that may have occurred in the provision of health care is the Public Administration. Given that our Constitution and laws establish the obligation to compensate individuals for the damages caused to them by the Public Administration, the filing of an administrative action against the Public Administration will be the most appropriate way.

The administrative route is suitable for cases where the complaint must be filed against the Public Administration. A claim for damages shall be made in the administrative route.

The process, even with a long processing period, allows the hearing of the interested party and, if requested, expert reports can be issued that reflect the contours of health and medical assistance. In particular, the request for analysis of the behaviour to the Medical-Legal Council of the National Institute of Forensic Medicine, which issues technical-scientific opinions in the most complex cases of medical responsibility, will be appropriate. This body will be responsible for determining whether the complaint is viable or whether, on the other hand, the request should be refused.

At the end of this phase, a judgement is obtained which considers the claim to be well-founded or unfounded and arbitrates compensation to repair the damage suffered.

Civil way

The civil procedure is suitable for cases where the claim must be made against a private individual, company or insurer. The civil action is exclusively a claim for damages. The civil action has a duration of approximately one and a half years since the legal action was filed. However, in civil proceedings, a settlement can be obtained before the conflict is judged, which may lead to the minimization of costs.

The civil way is the way to complain before private law subjects (private elderly homes, private hospitals...). The civil way is also the way to complain before an insurance company of health care providers (senior residences, private hospitals...).

The civil way is faster than the administrative route and administrative litigation, but it contemplates a greater risk in case the lawsuit is not considered justified: the imposition of court costs according to the amount claimed.

Criminal way

By the criminal way, the supposed realization of a crime (offense to physical integrity, homicide, violation of leges artis in the realization of medical-surgical interventions and treatments) can be pursued by the action or omission of natural persons or, in very concrete cases, the criminal responsibility of legal persons can be demanded. The criminal way is, perhaps, one with the longest duration, since it is articulated in two well differentiated phases: the instruction (or investigation) and the litigious phase in which one decides on the investigated facts (the hearing of discussion and judgment).

This also occurs because, during the criminal phase, many elements are involved that are beyond the control of the Lawyers, such as, for example, the participation of the Ministério Público. However, in this way it is up to the Ministério Público to investigate the facts complained of, which reduces the costs associated with the process.

The criminal procedure involves not only demanding compensation for the damage suffered, but also condemning the alleged perpetrator of the damage to deprivation of liberty.

 

More information about the Medical Liability Department | (Portugal)

Laboral risks

All workers, whether public or private, have the right to exercise their activity in conditions of safety and health at work. Contagions, accidents and occupational diseases must be compensated when they cause a violation of safety and health rules at work.

In Portugal, employers must make the necessary means of protection available to their workers to prevent them from suffering any damage during working time.

In addition, employers must also adapt the jobs to the specific needs that workers may have. In the same way, public workers also have the right to work under safe conditions. To this end, the Public Administration has the obligation to provide the necessary protective materials (or implement the necessary adaptation measures) to ensure that public workers work in a safe environment. Healthcare professionals, members of the security forces, firefighters... they all constitute society's first barrea of protection. We must protect and care for them so that they can provide their services.

At Belzuz Abogados SLP - Sucursal em Portugal we have a team of lawyers with extensive experience in monitoring work accident processes and recognition of occupational diseases, who can assist any injured party or employer in defining the responsibilities associated with a situation of possible violation of safety and health rules at work.

 

More information about the Medical Liability Department | (Portugal)

Senior residencies

We owe our elders a debt in the last stage of their lives. With the bustle of daily life, we cannot share all the time we want with them, and so we rely on senior homes and other establishments of this nature to look after them.

The decision to take our seniors into a home is not easy. Leaving our father/mother in the hands of strangers requires an effort from the whole family; that is why we demand from these institutions, in return, that they spare no resources and personnel so that our elderly are well looked after.

Unfortunately, in recent times, the quality of the care our elderly receive has been the subject of news in all the media: abandoned elderly people, mistreated or even mistreated by those who were supposedly responsible for them. This kind of situation, which may even result in injuries, is susceptible to civil liability; that is, negligence in the performance of duties in elderly residences and retirement homes may not only lead to an investigation of the facts and the adoption of corrective measures, but also to possible compensation. Falls, a lack of hygiene, the lack of follow-up in some homes is becoming one of the problems we have not been able to solve as a society.

The lack of attention to our elderly by public or private homes can give rise to different actions, all of which lead to re-establishing the best living conditions for those relatives we most want or trying to repair the damage caused.

At Belzuz Abogados SLP - Branch in Portugal we have a team of lawyers with extensive experience in following up on liability cases for lack of adequate care in senior residences, homes and palliative care providers.

 

More information about the Medical Liability Department | (Portugal)

 

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Medical negligences Portugal

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