Who is liable in the event of poor postoperative follow-up?

Who is liable in the event of poor postoperative follow-up?

After a surgery or medical procedure, follow-up is often necessary. If a problem arises during this period of follow-up, the doctor and/or hospital can still be held liable. After all, this liability does not end upon the successful completion of the surgery or medical procedure.

For example, the Antwerp Court of Appeals recently found both doctors and the hospital liable for loss of healing opportunities due to inadequate postoperative follow-up.

THE ERROR

The doctor

The physician's liability will be assessed according to the care that a normally careful physician of the same specialty would exercise.

Carelessness can occur not only when making a diagnosis or during treatment, but thus also during aftercare.

Numerous examples of this can already be found, including:

• an anesthesiologist on duty acted carelessly when, despite repeated complaints from the patient, he did not consider the possibility of an epidural hematoma until after two days and, moreover, failed to seek timely neurological advice when he could no longer control the pains, resulting in the late discovery of the epidural hematoma.
• a gastroenterologist who failed in his duty to provide proper aftercare by only scheduling an initial consultation 14 days after the procedure, without interim follow-up by nursing and family physician, when serious damage had already occurred after 5 days.

Hospital

When a patient has suffered harm in a particular hospital, he can also sue that hospital. (art. 30 Hospital Act)

After all, the hospital has a presumption of liability for all failures related to the Patient Rights Act committed by persons employed at that hospital.

For certain professional categories, such as independent physicians, the application of this presumption may be excluded by the hospital, but this must be clearly communicated to the patient in advance.

THE DAMAGE

The quantification of damages follows the doctrine of "loss of opportunity. Specifically, a comparison must be made between the benefits the patient could have expected had the opportunity been realized and the possibility of realizing that opportunity.

The "probability" in this case concerns the chance of healing.

Often these damages will "ex aequo et bono" be estimated, which amounts to a fairness estimate of damages, since a concrete calculation is not always possible.

In a recent ruling by the Antwerp Court of Appeal, an expert report did for the first time attach a concrete percentage to the missed chances of cure.

After reading this article, do you still have questions or do you determine that you have suffered damages due to inadequate follow-up care from your treated physician? Contact one of our attorneys specializing in medical law. Your contact will, of course, be handled with discretion.