As one of the most sensitive yet complex institutions of civil law (in general), medical malpractice sits at the intersection of medical science and compliance with legal norms.
As time has progressed, the medical system has evolved significantly, whether we consider surgical instruments (robotics, etc.) or medical techniques; however, alongside these advancements, a series of stricter regulations regarding patient rights has also emerged.
What is medical malpractice?
According to Art. 653 para. (1) of Law no. 95/2006 on healthcare reform, medical malpractice is defined as 'the professional error committed in the exercise of the medical or medico-pharmaceutical act, resulting in damages to the patient, involving the civil liability of the medical personnel and of the provider of medical, sanitary, and pharmaceutical products and services”.
The legislator aims to hold medical personnel accountable in the event of failure to properly comply with the rules established by the normative acts in force or other internal regulations.
Conditions for Liability in Medical Malpractice
As set forth in the provisions of Art. 653 of Law no. 95/2006, in order to meet the conditions for civil liability in malpractice, it is necessary to address the existence of several essential elements: the existence of an unlawful act during the performance of the medical act (medical error) – the damage sustained by the patient – the causal link between the physician's act and the damage sustained by the patient.
- The Unlawful Act (Medical Error)
Pursuant to Law no. 95/2006, the error may take the form of failure to comply with the standards of care—surgical errors (causing lesions during surgery), diagnostic errors (incorrect, incomplete, or missed diagnosis), therapeutic errors (prescribing inappropriate treatment), errors in patient information, or breach of the physician's duty of confidentiality.
- The Injury Suffered by the Patient
In order to establish a genuine case of medical malpractice, it is essential that the patient has suffered actual harm, resulting from the action or inaction of the physician in question (the physician's liability can be engaged strictly in situations where there are culpable deviations from professional standards)
The damage may be pecuniary (medical expenses, funeral costs, expenses incurred for subsequent procedures, etc.) or non-pecuniary (physical and psychological suffering, the deterioration of the quality of life, etc.).
The right to reparation for damages arises at the moment they are incurred, in accordance with the provisions of Art. 1381 of the Civil Code.
- The Culpability of Medical Personnel
In accordance with the provisions of the Civil Code, subjective liability shall be assigned to the physician only in the event that it is demonstrated that the latter acted culpably.
What does it mean? Fault (culpa) may be equivalent to negligence in the performance of duties (for example, the physician culpably omits to treat a patient), to imprudence (the physician acts without taking all necessary precautions beforehand), or to a lack of professional skill in certain situations.
- The Nexus of Causality
The most critical element to be proven in medical malpractice cases is the causal link between the physician's act and the damage sustained by the patient.
Not every act that causes harm can be classified as medical malpractice, especially when considering interventions where various adverse effects or complications may occur.
An injury resulting from a medical intervention may arise from a plurality of causes, independent of the physician's fault (infections contracted prior to hospital admission, non-compliance with post-operative care protocols, etc.).
The most useful evidence in highlighting the existence or absence of fault on the part of the physician is the forensic medical expert report, conducted by authorized experts, typically through the National Institute of Forensic Medicine (I.M.L.) or other institutions with specific duties in this regard.
Who can be held liable in the event of a medical malpractice case?
First and foremost, according to the law, all individuals involved in the deficient medical act shall be held liable in proportion to their respective degree of fault.
The most common 'defendant' in medical malpractice cases is the physician who handled the treatment, surgery, or procedures performed on the patient in question; the legal basis for holding them liable is found in Art. 653 para. (1) letter a) of Law no. 95/2006.
Additionally, public or private healthcare facilities may be held civilly liable, in their capacity as medical service providers, for any damages arising from prevention, diagnostic, or treatment activities, provided these are the consequence of nosocomial infections contracted during hospitalization, malfunctions of medical devices (which were not properly serviced and repaired), the use of sanitary materials or other such substances past their expiration date, or the acceptance of medical equipment or devices without the legally required insurance; furthermore, they may be held jointly and severally liable for the illicit acts committed by medical personnel employed under a labor or collaboration contract.
Lastly, by virtue of the mandatory malpractice insurance, the insurer shall bear a portion of the damages awarded to the patient, within the limits of the contractually agreed cap.
Which authorities can you notify if you have been a victim of medical malpractice?
Not every medical malpractice case is resolved in court, as the patient has the 'administrative' option to approach the authorities responsible for monitoring and identifying malpractice, or even the medical institutions in question directly, for an amicable and efficient resolution of the dispute.
In the event that an amicable settlement is not a viable option, the aggrieved patient has the choice to petition the court of law by filing a claim to hold the liable parties accountable and to obtain the damages they deem appropriate.
In a medical malpractice lawsuit, the burden of proof generally rests with the plaintiff (the patient), who must demonstrate—through medical records, expert reports, or any other available evidence—that the medical professional breached the standards of treatment or care, or culpably committed a medical error that ultimately caused the harm suffered by the patient.
Many medical malpractice lawsuits end up being litigated not based on the medical procedures per se, but rather on the compliance or non-compliance with the healthcare facility's bureaucracy. From the medical staff's perspective, every single decision or procedure adopted regarding a patient must be strictly documented, as the patient has the right to be informed of every intervention performed upon their person.
Conclusion
Whether viewed from the perspective of the physician involved or that of the aggrieved patient, any medical malpractice litigation requires both medical knowledge and a rigorous legal understanding of the rights and obligations of each party.
If you find yourself in a situation where medical malpractice is being invoked, the first step you should take is to consult a lawyerin order to properly assess the existence of all elements of civil liability and to outline a solid legal strategy.
English 
Română