Medical malpractice in Poland: compensation claims for foreign patients

Key information for foreign patients treated in Poland

• Medical malpractice in Poland may concern diagnosis, qualification for a procedure, the performance of the procedure itself, post-operative care, the organisation of treatment or the absence of informed consent.
• A foreign patient may bring claims against a Polish clinic, doctor, dentist, healthcare provider or professional liability insurer.
• A claim may cover not only a refund of the treatment price, but also corrective treatment, lost income, travel expenses, compensation for pain and suffering and future medical consequences.
• The occurrence of a complication does not automatically establish medical liability, but describing an outcome as a complication does not exclude malpractice where it resulted from an improper act or omission.
• In cross-border cases, complete medical records, documentation of subsequent treatment and an independent medical assessment are particularly important.
• A language barrier may be relevant when assessing whether the patient genuinely gave informed consent to the procedure.
• Most steps required to prepare the claim can be handled remotely, without the patient having to travel to Poland in person.

Can a foreign patient claim compensation from a Polish clinic?

Yes. A foreign patient may bring claims against a Polish clinic, doctor, dentist, healthcare provider or professional liability insurer. This applies both to patients living in Poland and to those who travelled to Poland solely for treatment.

Where the defendant is established in Poland and the treatment was performed in Poland, the Polish courts will generally have jurisdiction. Jurisdiction may be based on the defendant’s registered office, the place where the medical service was performed or the place of the event that caused the harm.

When can an unsuccessful procedure amount to medical malpractice?

Not every unsatisfactory treatment outcome amounts to medical malpractice. The occurrence of a recognised complication does not automatically result in a doctor’s liability where the patient was properly qualified for the procedure, the treatment was carried out in accordance with current medical knowledge and the post-operative care was appropriate. As noted in legal and medical literature: “Not every irregularity occurring in the course of treatment constitutes a medical error.” (E.A. Puch, M. Nowak-Jaroszyk, E. Swora-Cwynar, “Medical error in theory and practice: a review of the key issues”, Medycyna Pracy 2020;71(5):613-630)

Conversely, a clinic cannot avoid liability merely by asserting that the outcome was a “complication”. It is necessary to examine whether the risk was typical and unavoidable, whether the patient was informed about it, whether the correct method was used, whether the procedure was performed properly and whether the clinic responded appropriately to post-treatment symptoms.

In practice, determining whether medical malpractice occurred requires an analysis of the entire course of treatment, not merely the final result. Particular attention should be paid to the medical records, qualification for the procedure, the information given to the patient, the treatment method, the course of the procedure, the response to complications and the subsequent recommendations and post-operative care. An opinion from an independent medical specialist is usually also required to assess whether the doctor’s conduct complied with current medical knowledge and accepted professional standards.

Grounds for a claim may arise, in particular, from:

• incorrectly qualifying the patient for the procedure,
• failing to take an adequate medical history or perform necessary tests,
• using an inappropriate technique, implant, material or medical device,
• a technical error during surgery or dental treatment,
• failing to diagnose a complication or delaying its treatment,
• inadequate post-operative care,
• leaving an item of medical equipment inside the patient’s body,
• providing treatment without valid informed consent,
• failing to provide complete information about material risks and alternatives,
• keeping unreliable or incomplete medical records.

The patient should establish an improper act or omission, harm and a causal link. In medical cases, causation does not always have to be proved with absolute scientific certainty. A sufficiently high degree of probability based on the records, medical opinions and the overall sequence of events may be enough.

Dental malpractice in Poland and failed dental implants

Dental malpractice in Poland is one of the more common categories of claims brought by foreign patients. Disputes frequently concern implantology, root canal treatment, prosthodontics, nerve damage, sinus damage, defective diagnostic imaging, bite disorders, pain and chronic inflammation. In a failed dental implant case, the claim may cover more than the price of the original procedure.

Loss may also include the cost of removing the defective implant, treating infection, bone reconstruction, placing a replacement implant and providing a new crown, bridge or other prosthetic restoration. A claim may also arise where the restoration is technically functional but its appearance materially differs from the result presented and agreed before treatment.

Failed plastic surgery in Poland

In a failed plastic surgery case in Poland, the basis of a claim is not merely an unfavourable aesthetic result. The central issue is whether an act or omission by the clinic or surgeon departed from current medical knowledge, the agreed treatment plan, the standards for qualifying a patient for surgery or the duty to provide adequate information.

Medical malpractice in plastic surgery may include, in particular:

• incorrect qualification of the patient for surgery,
• causing an objective deformity, pronounced asymmetry or disfigurement,
• impairing breathing or another bodily function,
• avoidable scarring, necrosis, infection or other complications resulting from improper treatment,
• the need for further corrective surgery,
• specific and misleading assurances concerning the expected outcome of the procedure.

In such cases, the patient should preserve the medical records, consent forms, the clinic’s advertising materials, visualisations, before-and-after photographs, correspondence with the doctor and patient coordinator, and documents concerning qualification for the procedure and subsequent corrective treatment.

What compensation can a foreign patient claim in Poland?

A medical malpractice compensation claim in Poland is not limited to reimbursement of the treatment price. Depending on the medical and financial consequences, the patient may seek several separate forms of compensation.

Costs of corrective treatment and other financial losses

Under the Polish Civil Code, compensation for personal injury may cover all necessary and reasonable expenses resulting from the event. The patient may also request an advance payment for future treatment where the need for treatment and its approximate cost can be established.

The claim may include, among other items:

• surgery or corrective treatment,
• medical consultations and tests,
• hospitalisation, rehabilitation and physiotherapy,
• medicines and medical devices,
• psychological or psychiatric therapy,
• the cost of care provided by third parties,
• flights, local travel and accommodation,
• translation and organisation of medical documentation,
• lost salary or business income,
• future follow-up appointments.

Corrective treatment may be carried out in the patient’s country of residence. An injured patient is not required to return for treatment to a doctor or clinic in whom they have reasonably lost confidence. The scope and cost of the proposed treatment should, however, be supported by a detailed treatment plan or estimate.

Compensation for pain and suffering

A separate award may be available for non-financial harm, namely compensation for pain and suffering caused by medical malpractice. The court will consider, among other matters, the intensity of pain, the duration of treatment, hospitalisation, stress, disfigurement, loss of self-confidence, the need for further procedures and the effect of the incident on the patient’s personal and professional life.

Polish law does not provide fixed tables or standard amounts of compensation for particular categories of medical malpractice. The court must assess the patient’s individual circumstances, including the nature and intensity of pain, the duration of treatment, hospitalisation and further procedures, the permanence of the consequences, the prognosis, disfigurement, restrictions in professional and private life and psychological suffering. The award should have a real and economically meaningful value and genuinely compensate the patient for the harm suffered (judgment of the Polish Supreme Court of 26 November 2019, case no. IV CSK 386/18).

Lost income and ongoing compensation payments

A patient may claim income lost during hospitalisation, recovery or corrective treatment. An employee may prove the loss by producing an employment contract, payslips and a statement from the employer. A self-employed person may submit tax documents, issued invoices, cancelled contracts and evidence of their previous income.

Where the consequences of medical malpractice are permanent and reduce the patient’s earning capacity or increase their continuing needs, the patient may also seek periodic compensation payments.

Liability for future medical consequences

Some consequences of medical malpractice may become apparent only after several years. This may apply, among other matters, to nerve damage, implants, chronic infections, adhesions and neurological complications.

In justified cases, the patient may seek a declaration that the defendant is liable for consequences that may arise in the future. The Polish Supreme Court has confirmed that a claimant may have a legal interest in obtaining such a declaration in personal injury cases (resolution of the Polish Supreme Court of 24 February 2009, case no. III CZP 2/09).

Patient rights, informed consent and language barriers

Separate liability may arise from a culpable violation of the patient’s right to information, informed consent, access to medical records, dignity or privacy. A claim may be justified even where the technical performance of the procedure is not found to have been improper, but the patient was not given the information needed to make an informed decision.

Signing a consent form does not automatically release the clinic from liability. A patient who accepts the typical risks of a properly performed procedure does not consent to medical negligence.

Before treatment, the patient should receive understandable information about the diagnosis, the proposed method, alternatives, possible consequences, material risks, the expected outcome and the consequences of refusing treatment. In the case of surgery or another method involving an increased risk, consent should generally be given in writing.

In a case involving a foreign patient, it is important to determine whether the patient genuinely understood the form and the doctor’s explanations. Signing a document written in Polish may be insufficient where the patient did not understand the language and was not given information in a comprehensible form. A language barrier does not automatically invalidate every consent, but it requires an examination of the language used during consultations, the involvement of an interpreter or coordinator, the patient’s language ability and the content of messages and documents provided to them.

In some cases, improper treatment or the manner in which the clinic communicated with the patient may also violate the patient’s dignity, privacy or other personal rights. We discuss these claims in more detail in our article on the protection of personal rights in Poland.

How to obtain medical records from a Polish clinic

The first step after unsuccessful treatment in Poland should be to request the complete medical records from the Polish clinic. It is usually advisable to do so before entering into a detailed dispute with the clinic, in order to reduce the risk of missing documents, ambiguities or later evidential difficulties.

The records may be obtained by the patient, an authorised person or a legal representative. The request may be submitted electronically, and the first disclosure of the requested documentation is generally free of charge.

The request should include, among other documents:

• the complete treatment history,
• records of consultations and examinations,
• questionnaires and qualification for the procedure,
• consent forms,
• operation notes and anaesthetic records,
• post-operative recommendations,
• laboratory and diagnostic imaging results.

The request should cover the entire treatment period, not merely the date on which the procedure was performed.

What evidence should be preserved after unsuccessful treatment in Poland?

In addition to the medical records, the patient should retain contracts, invoices, payment confirmations, photographs, recordings, advertisements, visualisations and correspondence with the clinic, doctor and patient coordinator.

Records from hospitals and medical practices outside Poland that treated later complications may also be required. A corrective treatment plan should explain what treatment is necessary, why it is required and how much it is expected to cost.

A private medical opinion does not replace evidence from a court-appointed expert, but it can often help determine whether malpractice occurred, formulate the medical allegations correctly, calculate the claim and prepare questions for the court expert.

Who may be liable for medical malpractice in Poland?

The trading name displayed on a clinic’s website is not always the legal name of the entity that entered into the treatment contract with the patient. Before sending a demand or filing a claim, it is therefore necessary to establish who was party to the contract, who performed the procedure, who organised the treatment and who held professional liability insurance.

Modern medical treatment is often a team process. The liability analysis should not be limited to the person who physically performed the procedure. It should also cover the decisions of other members of staff, the flow of information, supervision and the organisation of the clinic’s work.

Depending on the professional arrangements and the clinic’s structure, liability may rest with:

• the healthcare provider or the doctor’s employer, particularly where the doctor provided treatment as an employee or the clinic was party to the contract with the patient,
• a doctor or dentist cooperating with the clinic under a civil-law contract,
• a doctor operating an independent medical practice, who may be directly liable to the patient,
• the professional liability insurer, where the incident falls within the scope of insurance cover.

The correct liable party should be identified by examining the invoice, contract, consent form, payment details, the register of entities carrying out medical activity and the insurance documents. Naming the wrong defendant may unnecessarily prolong the proceedings.

How to pursue a compensation claim against a Polish clinic

A claim arising from unsuccessful medical treatment in Poland should be prepared in stages. In practice, the process will usually involve the following steps:

1. Preserving evidence. The patient should collect the Polish medical records, documentation of subsequent treatment, diagnostic images, invoices, correspondence, photographs and advertising materials.
2. Independent medical assessment. A specialist should assess the patient’s qualification for the procedure, how the procedure was performed, the post-operative care, causation and the scope of necessary corrective treatment.
3. Identifying the defendants and valuing the claim. The clinic, doctor, dentist and insurer should be identified, and the treatment costs, lost income and compensation for pain and suffering should be calculated separately.
4. Pre-action demand and notification of the claim. A detailed letter should describe the course of treatment, the alleged breaches, the medical consequences, the evidence and the calculation of each amount claimed.
5. Negotiations, mediation or court proceedings. A properly prepared claim may lead to a settlement. Where the clinic or insurer refuses a reasonable resolution, court proceedings may be commenced in Poland.

During court proceedings, the most important evidence will usually be the opinion of one or more court-appointed experts in the relevant medical field. For that reason, the medical records should be complete and the medical allegations precisely formulated from the pre-action stage onwards.

Proceedings before the Polish Patient Ombudsman, Professional Liability Bodies and Criminal Authorities

Depending on the nature of the incident, it may also be appropriate to:

• submit an application to the Polish Patient Ombudsman,
• initiate professional liability proceedings against the doctor or dentist,
• report a suspected criminal offence,
• participate in criminal proceedings as the injured party.

These procedures do not automatically result in payment of full compensation and do not replace a properly prepared civil claim. They should be initiated where justified by the circumstances and evidence, rather than used routinely as a negotiating tactic.

Limitation periods for medical malpractice claims in Poland

For claims based on tort, the basic limitation period is three years from the date on which the patient learned, or with reasonable diligence could have learned, of the harm and the identity of the person responsible.

In personal injury cases, the limitation period cannot expire earlier than three years after the patient obtained that knowledge. A longer period may apply where the harm resulted from a criminal offence.

An ordinary demand for payment generally does not interrupt the limitation period. Notification of the claim to an insurer interrupts the limitation period for the claim against that insurer, but it should not be assumed without a separate legal analysis that it has the same effect in relation to the clinic or doctor.

The date of the procedure is therefore not the only relevant date. Delaying action nevertheless increases both procedural and evidential risk. The sooner the patient secures the relevant documents, the easier it will be to reconstruct the treatment and prepare the claim.

Compensation awarded by Polish courts in medical malpractice cases

The value of each case requires an individual assessment and cannot be determined solely by reference to amounts awarded in other proceedings. The principal factors include the nature, extent and permanence of the injuries, the intensity and duration of pain, the number of procedures, the length of hospitalisation and recovery, the future prognosis and the need for further treatment, rehabilitation or assistance from third parties.

Financial losses require a separate assessment, including the costs of corrective treatment, tests, medication, rehabilitation, travel and care, as well as lost salary or business income. For foreign patients, the claim may also include justified treatment costs in the country of residence, travel to Poland, accommodation and the translation of medical records.

Any valuation should be based on the complete medical records, the corrective treatment plan, the prognosis, the psychological and professional consequences and evidence of both incurred and anticipated expenses.

Summary

Medical malpractice in Poland may give a foreign patient grounds to pursue claims against a Polish clinic, doctor, dentist or insurer. An unsuccessful outcome alone is not enough to obtain compensation. It is necessary to determine whether there was an improper act or omission, what harm the patient suffered and whether there is a causal link between the treatment and the medical consequences.

In cross-border cases, particular importance attaches to the medical records, documentation of later treatment, language barriers, informed consent, identification of the correct liable party and accurate valuation of the claim. A properly prepared notification and pre-action demand may improve the prospects of settlement and, if the claim is rejected, provide a stronger basis for court proceedings.