Duty of care and medical malpractice: what can patients do?

1. Has there been a medical error? What constitutes malpractice?

‘Malpractice’ is the case where medical treatment has not been provided in accordance with the regulations and standards of the medical profession, or where the doctor may not have exercised the care due in the circumstances.

Other factors may play a part in individual cases:

• What was the procedure or treatment?

• Did the doctor exercise proper professional judgement? The decision does not have to be the absolute best one, but it must be reasonable.

• What resources and how much time did the doctor have available in the situation?

• Had the doctor kept their professional knowledge up to date with regular continuing professional development courses?

• Did the doctor exceed their professional capabilities?

2. Breach of the doctor's duty of care

As a patient, you have the right to medical diagnoses, advice and treatment that are offered with due care. To constitute a breach of the duty of care, harm must have been caused by ignorance, negligence, ineptitude or intent on the part of the doctor. Please remember that there is always a risk attached to medical interventions. Risks that become realities despite the doctor exercising due care are referred to as complications.

Before you go the legal route, you must check the exact medical facts of the case. Only then can you assess whether there has been a breach of the doctor's duty of care and that has caused the problem.

3. Your doctor's professional obligations

The Swiss Medical Professions Act (Art. 40, available in German, French and Italian only) describes the following professional obligations:

• Perform professional duties carefully and conscientiously

• Do not exceed your own professional capabilities

• Engage in lifelong continuing professional development

• Uphold the patient's rights

• Refrain from misleading and obtrusive advertising

• Uphold doctor-patient confidentiality

• Provide assistance in urgent cases

• Defend the interests of the patient when working with other parties

• Have medical malpractice insurance

4. What should I do if I suspect malpractice?

When it comes to medical malpractice, the burden of proof always lies with the patient. You should be aware that it is generally difficult to provide evidence both of a breach of duty of care, and of its causing the harm.

1. Seek dialogue: speak to the doctor who treated you. They may be able to put your mind to rest. The doctor may not even be aware that you are unhappy with the treatment or the outcome. In some cases, patients expect too much of their recovery, or have underestimated the risks. It is therefore worth going through these again with the doctor. If you are unable to find common ground, it is helpful to get a second opinion.

2. Ask your legal protection insurance provider about covering the costs: check whether your policy covers legal expenses for patients and, if so, report your claim. Some supplemental health insurance products include this kind of cover. If you are a member of the Swiss patient organization (SPO), you also have patient legal expenses cover.

3. Check the medical facts of the case: first of all, the medical facts should be set out as part of a preliminary investigation (by the SPO, for example) into whether or not it is worth taking the case further. If this investigation results in valid grounds to claim malpractice, the best thing to do is to instruct a lawyer who specializes in personal injury claims to evaluate the case on both sides. Depending on their findings, they may ask an impartial doctor to write an independent medical opinion.

4. Observe the set periods: claims for damages and compensation for personal suffering must be lodged within certain periods, after which they are forfeited or become statute-barred. The deadlines that apply should be determined at an early stage with a specialist lawyer.

5. Report to the cantonal medical officer: the cantonal medical officer must intervene if there are repeated irregularities. They can issue a formal warning or reprimand to the doctor, fine them, impose certain conditions or temporarily or permanently withdraw their licence to practise, as well as prohibit them from either managing their own practice or being employed at another.

6. Take legal steps: the expert opinion will give you an idea of your chances of winning an out-of-court settlement or actual court case. Do not take legal action until you know what implications the proceedings might have for you, including the costs.

5. Medical malpractice law: when is the doctor liable?

An injured patient cannot claim damages unless the doctor is liable for the harm caused. The doctor is liable if:

1. There has been medical malpractice (evidence that they have violated their duty of care) and

2. This malpractice has led to physical, financial or other damage (e.g. treatment costs, care costs, loss of earnings, disability) and

3. This malpractice caused the damage in question (proof of the causal relationship).

6. Tips on legal action in cases of malpractice

Based on the experience of the SPO, an estimated 98% of conflicts between patients and doctors are resolved out of court. Most patients are unable to afford the costs of medical investigations and any legal opinion. Furthermore, injured parties must accept a high level of risk where costs are concerned, especially when taking a matter to court, because of the advances they must pay for court and legal fees. Patient legal expenses insurance (in German only) can only help to finance cases like these if you took it out before the damage occurred.

Please also remember that court proceedings often take several years, which causes considerable stress for all concerned. The periods that apply before claims are forfeited or become statute-barred should also be considered. In the case of liability claims this is ten years, but may be even shorter in cases involving public hospitals.

7. Supervision of doctors and practices in the Swiss healthcare system

Doctors require a cantonal licence to practise. Cantonal checks and disciplinary measures are also intended to protect patients from unscrupulous doctors. If they violate their professional obligations, doctors may face sanctions and conditions, official warnings, reprimands and fines from the canton.

The register of medical professions, MedReg, lists licences that have been withdrawn from or refused to medical practitioners. It does not show sanctions or other disciplinary measures, however.