The number of medical malpractice litigation cases in Romania is growing exponentially. It is a phenomenon that directly involves insurance companies, since professional liability insurance covering malpractice is mandatory for doctors.

This trend can be explained by the collapsing Romanian healthcare system, characterised by poor conditions in hospitals, a lack of medical personnel, and the exodus of doctors abroad. The increase in the number of medical malpractice suits is also due to several highly publicised cases of doctors being accused of conducting unauthorised medical experiments on patients, mainly children.

The media assault on the medical system and the negative publicity for doctors and the healthcare system in general have led to a bevy of malpractice lawsuits. The trend is comparable to the wave of litigation cases against banks regarding abusive clauses in consumer loan agreements. Paediatric orthopaedics, gynaecology and oncology are the fields facing the most malpractice suits.

Inconsistent court practice

A medical malpractice case can be either a civil or a criminal issue. While the sole purpose of civil suits is to obtain damages, in criminal cases, the criminal liability of the doctors is also triggered. A particular issue of the malpractice litigation in both types of cases is that due to a jurisprudential interpretation of the Romanian High Court of Justice and Cassation and the applicable law, litigation cases start at the first instance courts (the lowest level courts in Romania) irrespective of their value and/or complexity. This means that sometimes they land on the desks of inexperienced judges.

Victims of medical malpractice generally seek high amounts of moral damages, ranging from EUR 100,000 to EUR 5 million. As can be expected, there is no consistent court practice or guidelines with respect to the amounts granted if medical malpractice is proven. Often there is no real difference between minor and more serious cases, the amounts granted usually being significant and sometimes even excessive.

Risks for insurance companies

While insurance companies are eventually called to cover the claims referring to professional liability insurance policies, the practice of litigation lawyers assisting insurers in specific cases has intensified in recent years. There are many new situations in practice that would call for clearer regulation, with the aim of helping the Romanian courts tackle this type of litigation.

For instance, most types of professional liability insurance policies for doctors and hospitals do not cover clinical trials or unauthorised experiments, while certain types of policies exclude intentionally committed harmful medical acts.

The legislation is also rather unclear not only with respect to the procedures to follow, but also as regards the definition of medical malpractice itself. There are no standards to guide the courts in determining whether a medical act is within the range of the inherent risk of the medical activity or exceeds the limits of such risk.

From a criminal law perspective, medical malpractice cases are usually qualified as bodily injury by negligence or involuntary manslaughter. While the actual differences between a simple bodily injury case and a malpractice case are obvious, specific legislation to incriminate medical malpractice as it is and to set the necessary limits and/or criteria is being delayed.

Solutions

Insurance companies need to make sure that their interests are well represented in such litigation cases, and that their insurance contracts offer them sufficient protection, such as exclusions or procedural obligations for the insured party.

Going forward, a careful review of the general terms and conditions of professional liability / malpractice insurance contracts is advisable. For example, the indemnity limits per event and per total should be clearly defined. In some cases, dozens or even hundreds of malpractice claims could be registered on a single insurance policy held by a large hospital, and courts often might not take into account damages already paid based on the same policy, and thus, the exhaustion of the policy limit value.

In the context of the constantly increasing amounts of moral damages granted by the Romanian courts, the handling of medical malpractice cases requires particular care, taking into account the general sensitivity of these cases and public criticism of the broken healthcare system.