The injured party’s claim for compensation arising from medical malpractice by a doctor or by hospital personnel may be excluded or limited in three cases: a) contributory fault, b) set-off of loss against gain, and c) the statute of limitations. More specifically:
What does «contributory fault» mean in the exclusion or limitation of the compensation owed by the doctor or hospital in the event of medical malpractice?
Grounds for reducing the compensation owed are constituted by the contributory fault of the injured party. This refers to a case where the injured party has, through their own conduct, contributed to the causation or extension of the harm, which is therefore not attributable solely to the conduct of the hospital’s personnel. Contributory fault may consist, for example, of concealing a previous artificial termination of pregnancy or of deviating from the doctor’s instructions during the post-operative stage. However, no such co-responsibility exists where the person concerned suffers from severe mental impairment, since they lack the capacity for legal attribution; co-responsibility is imputed only to persons capable of understanding the significance of their acts and omissions.
What does «set-off of loss against gain» mean in the exclusion or limitation of the compensation owed by the doctor or hospital in the event of medical malpractice?
Compensation may be reduced to the extent that the injured party has in fact benefited from the unlawful conduct of the hospital’s personnel — for example, where, on account of the injury, the patient obtained a long period of sick leave from the public service in which they were employed and earned increased income from the private practice of their profession. Setting off the loss against the gain is justified, since the purpose of the civil liability of the hospital, and of the State in general, is to make good the loss caused and not to enrich the person who suffered the unlawful act of the State’s organs.
However, set-off is not permitted where the acquisition of the benefit is not causally connected with the harmful event. For example, in the case of a patient’s death due to medical malpractice, it is not possible to deduct the rental income from properties bequeathed by the deceased to their children, since those persons would in all likelihood have become heirs even without the unlawful act or omission of the State’s organ.
What does «Limitation of claims» mean in the exclusion or limitation of the compensation owed by the doctor or hospital in the event of medical malpractice?
The limitation period for claims against a hospital is five years and runs from the end of the financial year in which the claim arose and became judicially actionable, as is generally the case for any limitation of claims against the State. The claim arises from the moment when the harmful consequences of the conduct in question were diagnosed. What matters is therefore not when the loss occurred in abstracto, but when it became perceptible — more specifically, «when it first appeared».
If the harmful consequences occur continuously and their occurrence can be foreseen in the ordinary course of events, no new claim for compensation arises. If, however, consequences subsequently arise that could not have been foreseen in the ordinary course of events, then a new limitation period begins, because a new claim arises. Likewise, if the harmful result is due to separate acts and omissions, the limitation period is affected accordingly.
The limitation of the claim against a public hospital is interrupted either by the submission of the case to the competent court — in which event the limitation period restarts from the last procedural act of the parties, the court or the arbitrators — or by the submission to the hospital of an application for payment of the claim — in which event the limitation period restarts from the date borne by the hospital’s written reply, or, in the absence of a reply, after the lapse of six months from the date of submission of the application — or, finally, by the issuance of a payment order.
For example, the Athens Administrative Court of First Instance, in its judgment No 13431/2013, held that the claim at issue had not become time-barred where an action for damages had been brought against the National and Kapodistrian University of Athens, to which Aretaieio Hospital belongs, even though the action had been directed against the Greek State and was dismissed as inadmissible due to the latter’s lack of passive standing, because that action had to be construed as an application under Article 51 of Legislative Decree 496/1974 for payment of the claim, by which the limitation of the plaintiffs’ claim at issue was interrupted. This was so because the action originally brought came to the full knowledge of the defendant legal entity of public law that was liable for payment, which had submitted written observations to the Court.
What does «Personal liability of the organ» mean in the exclusion or limitation of the compensation owed by the doctor or hospital in the event of medical malpractice?
Despite the provision of Article 105 of the Introductory Law to the Civil Code (EisNAK) on the joint and several liability, together with the State, of the person at fault for the loss caused, its scope of application is exceptionally limited because of the provision in Article 38 of the Civil Servants’ Code that public servants and employees of local government organisations are not liable to third parties for unlawful and harmful acts committed in the exercise of the public service entrusted to them. This exemption from liability has also been extended to military personnel in general.
Consequently, the medical, nursing and administrative personnel of public hospitals and of the hospitals of the Armed Forces are not personally liable to third parties. The injured party may therefore bring an action only against the hospital. However, where the loss was caused by the wilful intent or gross negligence of the hospital’s organ, the hospital may bring a recourse action against that organ and seek to recover from them the compensation paid to the private party.
As regards the liability of university doctors, case-law consistently held that they were not subject to the Civil Servants’ Code, and consequently they were personally liable, with their own private assets, for malpractice committed in the course of their medical service at a university hospital. Eventually, Article 1 of Law 3754/2009 assimilated university doctors to hospital doctors as regards their civil liability.
- See also article Lawyer for Civil Liability of the State
- See also article Lawyer for Petition to the European Court of Human Rights (ECHR)
- See also article Medical Negligence Lawyer
FREQUENTLY ASKED QUESTIONS ON MEDICAL MALPRACTICE: CASES OF EXCLUSION OF COMPENSATION FROM DOCTOR/HOSPITAL
1. In what cases do I lose compensation from the hospital?
A claim for compensation for medical malpractice may be excluded or limited mainly in three cases: where there is contributory fault on the part of the patient that contributed to the harm; where the injured party obtained a benefit causally connected with the harmful event (set-off of loss against gain); and where the five-year limitation period for claims against the State has elapsed. Each of these three objections is typically raised by the hospital’s legal department (which is also supported by the Legal Council of the State) and requires a targeted rebuttal by the injured party’s authorised lawyer, so that the claim is not dismissed in its entirety or significantly reduced.
2. How is the contributory fault objection rebutted?
The hospital often invokes the argument that the patient themselves contributed to the harm — for example, by concealing elements of their medical history or by failing to comply with post-operative instructions. The rebuttal is made by demonstrating that the injured party’s conduct was not causally connected with the harm, that the doctor had not adequately informed them, or that their conduct does not amount to negligence according to common experience. With persons suffering from severe mental impairment or lacking the capacity for legal attribution, no co-responsibility can arise. Even where partial fault is recognised, this leads merely to a percentage reduction of the compensation and not to its complete exclusion.
3. Within what period must I bring the action against the hospital?
The limitation period for claims against a public hospital is five years and runs from the end of the financial year in which the claim arose and became judicially actionable — that is, from the moment the harmful consequences were diagnosed. If consequences that could not have been foreseen later emerge, a new limitation period begins for the new claim. The limitation period is interrupted by the bringing of an action, by the submission of an application for payment to the hospital, or by the issuance of a payment order. Owing to the complexity of the starting point, the timely calculation of the deadline requires a legal assessment of the medical file.
4. Which court hears the action against a public hospital?
The competent court is the Administrative Court of First Instance of the place where the hospital has its seat, since its liability is based on Article 105 of the Introductory Law to the Civil Code (EisNAK) on the civil liability of the State and of legal entities of public law. At second instance, the competent court is the Administrative Court of Appeals, and ultimately the Council of State (StE) by way of cassation, where the conditions are met. The action is directed against the hospital itself or against the entity to which it belongs (e.g. the National Health System, or the University in the case of a university clinic), and not against the individual doctor, who, since 2009, has been assimilated to hospital doctors as regards civil liability.
5. What documents and evidence do I need?
The core of the file is the complete medical file held by the hospital, which the patient is entitled to obtain upon request. It is accompanied by certifications and opinions from treating doctors, examination results, receipts for hospitalisation, medication, physiotherapy and transport expenses, certificates of loss of income, and disability certificates. Most important, however, is a forensic or expert opinion from a specialist of the relevant field, documenting the deviation from the rules of medical science (lex artis) and the causal link with the harm. In the event of death, a death certificate and evidence of the dependants’ maintenance entitlement are added.
6. What is the role of the lawyer in a medical malpractice case?
The lawyer assesses the medical file from the outset in cooperation with a medical expert, establishes the existence of a deviation from the rules of medicine and the causal link, calculates the limitation period and selects the most appropriate procedural step (application for payment to the hospital or a direct action). The lawyer drafts the action, quantifying the actual loss and lost profits, the moral damages or the mental suffering of the relatives, represents the injured party before the administrative courts, and rebuts the hospital’s objections of contributory fault, set-off of benefit and limitation, so that the maximum possible compensation is awarded.