Medical negligence in Belgium: your rights after a medical error

A medical error or a medical accident can have serious consequences for your health, your income and your life. As a patient in Belgium, you have two possible routes to compensation: the medical liability of the healthcare provider or the hospital, and the intervention of the Fund for Medical Accidents (Fonds voor de Medische Ongevallen / Fonds des accidents médicaux). This article explains when medical negligence in Belgium gives rise to liability, how the Fund works, which time limits apply and how to build your case.

Medical negligence: when is a healthcare provider liable?

A healthcare provider is generally under an obligation of means (inspanningsverbintenis / obligation de moyens): they do not promise a cure, but careful treatment in line with current medical science. They are liable if they made an error that a normally careful provider of the same discipline would not have made in the same circumstances. Examples include:

• a wrong or late diagnosis;
• a technical error during a procedure;
• the wrong medication or dosage;
• inadequate follow-up after treatment;
• failing to inform the patient, or informing them insufficiently, about the risks, so that they could not give informed consent.

In addition to the fault, the damage and the causal link between the fault and the damage must be proven. That causal link is often the most disputed point. If it is not established that the damage would have been avoided without the fault, the loss of a real chance of recovery or survival may, in certain cases, be compensated.

The Fund for Medical Accidents: compensation without fault

The Fund for Medical Accidents was set up within the National Institute for Health and Disability Insurance (RIZIV / INAMI) by the Act of 31 March 2010 on compensation for damage resulting from healthcare. It can intervene for damage caused by an event that occurred after the Act was published in the Belgian Official Gazette (Belgisch Staatsblad / Moniteur belge) on 2 April 2010. The Fund intervenes, among other situations:

• in the case of a medical accident without liability, where nobody made an error;
• where the healthcare provider or their insurer disputes liability or makes a manifestly insufficient offer of compensation;
• where the liable provider is not insured, or not sufficiently insured.

For a medical accident without liability, and also where the healthcare provider or their insurer disputes liability, the damage must be sufficiently serious (Articles 4 and 5 of the Act of 31 March 2010). This is the case if it has at least one of the following consequences:

• permanent disability of 25 per cent or more;
• temporary incapacity for work of at least six consecutive months, or of six non-consecutive months within a period of twelve months;
• particularly serious disruption, including of an economic nature, to the patient’s living conditions;
• the death of the patient.

The procedure before the Fund is free of charge for the applicant. The Fund examines the file, may arrange a medical expert assessment and issues an opinion on liability and on the seriousness of the damage. That opinion is not binding on you: if you do not accept the compensation offer, you can still go to court. Where the Fund pays in place of a liable provider, it can subsequently recover that amount from the provider or their insurer.

Which damage can be compensated?

Where the healthcare provider is at fault, in principle all resulting damage can be compensated: additional medical costs, loss of income, temporary and permanent incapacity, non-pecuniary and aesthetic damage and, in the event of death, the damage suffered by the surviving relatives. Amounts already paid by your health insurance fund (ziekenfonds / mutualité) or another insurer are generally not compensated a second time. That body can itself recover the amount from the liable party.

To assess certain heads of damage, courts often use the Indicative Table (Indicatieve Tabel / Tableau indicatif), which contains guideline amounts but does not bind the judge. A medical expert establishes the injuries, the duration of the incapacity and the permanent after-effects. The same assessment rules apply, for example, to victims of a road traffic accident.

Doctor or hospital: whom should you hold liable?

Besides the individual provider, the hospital may also be liable, for example for errors by its staff or for poor organisation of care, such as insufficient monitoring after a procedure. A hospital employee, such as a salaried nurse, is generally only personally liable for fraud, gross negligence or minor negligence that occurs habitually rather than accidentally. In that case, you primarily bring your claim against the hospital.

Which party you pursue also depends on the doctor’s status: many doctors work in hospitals on a self-employed basis. The hospital must inform you of its legal relationship with the practitioners who work there. The doctor and the hospital are often sued together, so that the court can apportion responsibility between them.

Your rights as a patient

The Act of 22 August 2002 on patients’ rights (wet betreffende de rechten van de patiënt / loi relative aux droits du patient) gives you, among other things, the right to information about your state of health and the treatment, the right to give informed consent and the right to access and obtain a copy of your patient file. That file is the starting point for any claim: request it as soon as possible.

After a patient’s death, their spouse, legal cohabitant, partner and relatives up to and including the second degree may, through a healthcare professional they designate, access the file, provided their request is sufficiently reasoned and specified and the patient did not expressly object (Article 9(4) of the Act of 22 August 2002). Every hospital has an ombudsman service where you can lodge a complaint; for care outside hospitals, you can contact, among others, the Federal Ombudsman Service for Patients’ Rights. A complaint to an ombudsman service does not in itself lead to compensation, but it can provide clarity.

How to build your case after medical negligence

• request a full copy of your medical file from every hospital and every healthcare provider involved;
• write down what happened as soon as possible: dates, names, conversations and the information you received beforehand;
• have the file reviewed by an independent medical adviser (raadsgeneesheer / médecin-conseil), who can assess whether there was an error or a medical accident;
• keep track of your costs and loss of income, with supporting documents;
• choose the most appropriate route together with your lawyer: an amicable settlement with the provider’s insurer, an application to the Fund, or court proceedings with a court-appointed expert, in urgent cases through summary proceedings (kort geding / référé).

Limitation periods: how long do you have to act?

A claim for damages based on non-contractual (tort) liability is generally time-barred five years from the day after you became aware of the damage (or its aggravation) and of the identity of the liable person. In any event, it is time-barred twenty years after the event that caused the damage (Article 2262bis of the old Civil Code).

If your claim is based on your contract with the doctor or the hospital, a ten-year period applies in principle. Which legal basis, and therefore which period, applies may be disputed: always work on the basis of the shortest period. An application to the Fund is inadmissible if it is made more than five years after the day following the day on which you became aware of the damage or its aggravation, or more than twenty years after the day on which the harmful event occurred (Article 12 of the Act of 31 March 2010). Sending the application does, however, suspend the limitation period for your civil claim until the procedure before the Fund has ended (Article 13), but do not wait too long.

Frequently asked questions

Should I go to the Fund or to court first?

That depends on your case. The procedure before the Fund is free of charge and can be a good first step, but you can also bring a claim directly against the healthcare provider or their insurer. Pursuing both routes at the same time is subject to rules, so seek advice beforehand.

Will a complaint to the Order of Physicians get me compensation?

No. Disciplinary proceedings before the Order of Physicians (Orde der artsen / Ordre des médecins) concern the doctor’s professional ethics and can lead to a disciplinary sanction, but they do not award compensation. To obtain compensation, you must go through the Fund, an amicable settlement or civil proceedings.

How long does a procedure take?

Medical cases usually require a medical expert assessment and therefore often take considerable time. A well-prepared file and an early medical analysis can speed up the procedure and increase the chances of an amicable settlement.

Is a complication always medical negligence?

No. A known risk that materialises despite correct treatment is not an error. It may, however, be a medical accident without liability, and the question of whether you were properly informed about that risk remains relevant.

Who pays the costs of proceedings?

Depending on the policy, legal expenses insurance often covers the fees of your lawyer and your medical adviser. If you lose court proceedings, you generally pay a procedural indemnity (rechtsplegingsvergoeding / indemnité de procédure) to the other party; if you win, you receive one. If your income is limited, you may, under certain conditions, be entitled to second-line legal aid through the Legal Aid Office (Bureau voor Juridische Bijstand / Bureau d’Aide Juridique).

Novex Advocaten assists you after medical negligence

From our office in Brussels, we assist patients and bereaved relatives in obtaining and having their medical file analysed, in applying to the Fund for Medical Accidents and in proceedings against healthcare providers and hospitals. Also read our article on legal expenses insurance.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.