Medical error

What is a medical error?

A medical error is an error in care resulting in harm that could have been prevented. It concerns actions or omissions by a doctor, nurse, hospital, or other healthcare provider that were substandard. Examples include a missed diagnosis, an incorrectly performed operation, medication prescribed incorrectly or too late, or an infection caused by poor hygiene.

It is important to realize: not every setback in healthcare is a medical error. Medicine involves risks, and even a good doctor can have a poor outcome. The legal question is not whether things went wrong, but whether the healthcare provider acted culpably. Only if that is the case can you recover damages.

On this page, we explain when a medical error occurs, how to hold the hospital liable, and what compensation you can claim. If you have sustained injuries due to something else, please visit our page on other personal injury claims.

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When does a medical error occur?

The core of all medical liability is one standard: did the healthcare provider act as a reasonably acting and reasonably competent professional would have done in the same situation? This is the standard that judges and medical advisors always apply.

The doctor therefore does not have to be perfect. The question is whether he or she acted as an average, good fellow doctor would have done under the same circumstances. An error that any careful doctor could also have made does not give rise to liability. An error that a reasonably competent colleague should have avoided, however, does.

Examples of situations that may indicate a medical error:

• A clear abnormality on a scan or photo that was overlooked;
• Surgery on the wrong body part or leaving an instrument in the body;
• An incorrect dosage or a medication that does not go well with other medication;
• A diagnosis that was made much too late, meaning treatment had less chance of success;
• Insufficient aftercare or ignoring clear warning signs.

Whether a truly culpable error was made in your case can often only be assessed by an independent medical advisor. They review your file against the applicable guidelines and against what a competent colleague would have done.

When is something a complication and not an error?

The difference between a complication and a culpable error

In practice, this distinction is the most important, and at the same time the most difficult. A complication is a known and recognized risk of a treatment that can occur, even if the doctor has done everything correctly. A wound infection, post-operative bleeding, or nerve damage can be known risks of a procedure. If such a complication occurs without the doctor doing anything wrong, there is usually no liability.

The situation changes if the doctor should have foreseen the complication, did not respond adequately when it occurred, or failed to warn you of that risk beforehand. In such cases, a complication that is known in itself can still result in a culpable error. The boundary between a complication and an error is therefore not a matter of the result, but of the actions surrounding it.

WGBO and informed consent

The Medical Treatment Agreement Act (WGBO) requires your doctor to properly inform you before you give consent for a treatment. This is called informed consent. You are expected to know what the treatment entails, what risks and complications are associated with it, and what alternatives are available. Only when you know this can you make a truly free choice.

If this did not happen or happened insufficiently, it can in itself constitute a reproach. If you had been warned in advance about a specific risk, you might have refused the treatment or chosen an alternative. Violation of the duty to inform is therefore a common and serious basis for reproach in medical cases.

Who is liable? The hospital

Many people think they need to hold the individual doctor who made the mistake accountable. That is usually not necessary, and even unwise. The law makes it easier for you here than you think.

Pursuant to Article 7:462 of the Dutch Civil Code , the hospital can be held centrally liable for errors made within the hospital, even if the error was committed by an individual doctor or nurse. Therefore, you do not need to determine exactly who did what or who is to blame. You simply hold the hospital liable, and the hospital (or its liability insurer) is your point of contact.

This so-called central liability is a major advantage for patients. It does not matter whether the doctor was employed or worked as a self-employed professional in the hospital: you can hold the hospital liable. If things went wrong at an independent practice, such as a general practitioner, dentist, or physiotherapist outside a hospital, you hold that healthcare provider or practice directly liable.

A complaint is different from a damage claim

This is a confusion we often see. Filing a complaint and setting up a claim for damages are two completely different things, with different goals.

A complaint concerns acknowledgment, explanation, and improvement. You can contact the hospital's complaints officer, and in serious cases, the Disciplinary Board for Healthcare. The Disciplinary Board assesses whether the doctor has acted in a manner that is reprehensible under disciplinary law and can impose a measure, such as a warning or reprimand. However, a complaints procedure does not entitle you to any financial compensation.

A damage claim is a civil procedure through which you seek monetary compensation for your damages. This is handled through the hospital and its insurer, not through the disciplinary board. If you want compensation for your lost income, medical expenses, and pain and suffering, you must follow the damage claim route.

The routes can reinforce each other: a ruling by the disciplinary board can serve as evidence in a damages case. However, do not count on a well-founded complaint automatically leading to compensation. A separate approach is required for that.

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The medical record as evidence

In a medical case, your file is the most important piece of evidence. It contains what was examined, decided, and done. You have the legal right to request your complete medical file and to receive a copy. Always do this as soon as possible, and request the full file, including X-rays, scans, surgical reports, and correspondence.

An independent medical advisor studies this file and assesses it against the applicable guidelines. This clarifies whether there has been a deviation from what a reasonably competent professional would have done. Without such a medical assessment, a claim is virtually without merit, which is why this is a standard step in every case we handle.

There is another important legal point. If it turns out that the file is incomplete or poorly maintained, this can work to your advantage. A healthcare provider has a statutory duty to keep records. If they fail to comply with this properly, a judge can reverse the burden of proof: the hospital must then demonstrate that no mistake was made, instead of you having to prove that one was. A messy file can thus unexpectedly strengthen your position.

What damages can you claim?

If an independent medical advisor has confirmed that a culpable error has been made, you are entitled to compensation for your full damages. These damages consist of two types.

Material damage is all damage that can be expressed in monetary terms, such as:

• Loss of income, now and in the future, if you are unable to work or can work less;
• Deductible, co-payments and non-reimbursed medical costs;
• Costs of additional treatments, rehabilitation, or aids;
• Costs for domestic help, informal care, and home adaptations;
• Travel expenses to doctors and hospitals.

Non-material damage is compensation for pain and suffering: reimbursement for your pain, grief, and loss of enjoyment of life. How much you can claim depends on the severity and lasting consequences of the injury.

Would you like to get an idea of ​​the total extent of your damages? With our personal injury calculation tool, you can get an initial estimate. Please bear in mind that every case is different and that only a personal assessment provides a reliable picture.

How much compensation for pain and suffering will you receive?

Pain and suffering compensation is the reimbursement for suffering that cannot be expressed in monetary terms: the pain, the limitations, and the loss of quality of life. In cases of medical errors, the amounts can run substantial, because the consequences are often profound and permanent.

The amount of compensation for pain and suffering depends on factors such as the nature and severity of the injury, whether it is permanent, your age, and the impact on your daily life, work, and relationships. For relatively minor injuries, it sometimes amounts to a few thousand euros, while serious permanent damage can lead to amounts of tens of thousands of euros or more.

Because no two situations are alike, there is no fixed table from which you can read your amount. On our page about compensation for pain and suffering , you can read in more detail how the amount is determined and what you can approximately expect in your situation.

What should you do?

Do you suspect that a medical error has been made? With a few steps, you will immediately be in a stronger position:

• Request your medical records. Gather your complete file, including scans and surgical reports. This is your most important evidence.
• Document everything. Write down what happened, when, and who you spoke to. Keep appointment confirmations, letters, and emails.
• Keep track of your expenses. Keep receipts and invoices for all costs related to the error.
• Do not sign anything without careful consideration. Do not sign any statements or settlement proposals from the hospital or the insurer before seeking advice.
• Enlist expert help. Have your situation assessed free of charge so you know whether a claim has a chance of success.

You submit your medical records yourself, after which we assess your situation free of charge . As soon as you register your case with us, we take over the process of holding the hospital liable and communication with the insurer. If an independent medical opinion is required beforehand to ensure feasibility, we will always discuss the costs with you first — in the event of acknowledged liability, these will be recovered from the insurer.

Can my case become time-barred?

Yes, a claim resulting from a medical error can also become time-barred, and that is a reason not to wait too long. In principle, a limitation period of five years. That period only begins to run from the moment you are aware of both the damage and the party liable for it.

Especially in the case of medical errors, determining that starting point is often difficult. Sometimes it only becomes clear years later that a previous treatment went wrong. Therefore, the time limit may start later than you think. Nevertheless, waiting is never wise: evidence disappears, memories fade, and the file sometimes becomes harder to complete.

Are you unsure whether your case is still timely? Feel free to bring it to our attention. We can often quickly assess whether the time limit is still running and, if necessary, interrupt the statute of limitations so that your rights are preserved.

Do I need a personal injury expert or a lawyer?

You do not fight a medical malpractice case alone. You face a hospital with lawyers and an experienced insurer, and the medical side of the case is complex. Proper guidance makes the difference between a rejection and fair compensation.

The good news: this help doesn't have to cost you anything. Pursuant to Article 6:96 of the Dutch Civil Code, the reasonable costs of legal assistance are part of your damages. If the hospital is liable, the opposing party also pays the costs of your legal representative. This way, you receive expert help without financial risk.

A personal injury expert requests your file, engages the independent medical advisor, holds the hospital liable, and negotiates compensation on your behalf. You maintain a single point of contact and can focus your energy on your recovery. Do you want to know where you stand? Have your case assessed free of charge and without obligation.