Compensation for Non-Property Damage Due to Patient's Death

There were differing opinions regarding claims related to compensation for non-property damage resulting from the death of a spouse, child, or another family member. It was considered that the right to compensation for non-property (moral) damage belonged solely to the injured party (see Supreme Court of Georgia cases № ას593-568-2016, July 14, 2017; #As-105-545-06, September 27, 2006).

This practice changed following the decision of the Administrative Chamber of the Supreme Court of Georgia (case #ბს-327-309(2კ-07), May 16, 2019). The basis for this change in established practice was the European Court of Human Rights’ July 19, 2018 decision in the case “Sarishvili-Bolkvadze v. Georgia.”

In that case, the complainant challenged the refusal to compensate moral damage caused by the death of her child due to medical error during national judicial proceedings and pointed to a defect in the national legal system which did not allow surviving close relatives of the deceased to claim moral damage compensation due to death.

The European Court accepted the facts established by the Georgian courts concerning the existence of a medical error resulting in the patient's death, found a violation of Article 2 (right to life) of the European Convention on Human Rights, and explained as follows: “... compensation for non-property damage resulting from violations of Articles 2 and 3 of the Convention should, in principle, be possible as one of the means of effective protection (see Paul and Audrey Edwards v. United Kingdom, N46477/99 §97, §101, ECHR 2002-II; Bubbins v. United Kingdom, N2694/08, §65-68, March 13, 2012); … Since it was established that the complainant undoubtedly experienced psychological stress due to the death of her young child, the legislative restriction unfairly deprived her of the possibility of seeking compensation through judicial means, which is the only accessible civil law protection for her (see the Strasbourg European Court of Human Rights decision Sarishvili-Bolkvadze v. Georgia, N58240/08, §96-97, July 19, 2018).” Thus, the European Court concluded that renewal of proceedings was possible in the given case.

The Administrative Chamber of the Supreme Court of Georgia, based on subparagraph “ზ” of Article 423 of the Civil Procedure Code, renewed the case on the cassation appeal G.S., took into account the approaches outlined in the European Court of Human Rights decision (despite the absence of adequate regulation in national legislation regarding compensation for damages suffered by the mother of the deceased), and issued a new ruling partially satisfying the claim and ordered the medical institution to pay compensation for moral damage in favor of the plaintiff.

Following this newly established practice in such categories of cases, the Tbilisi City Court, by decision of April 10 of this year, satisfied the claimants’ demand for compensation for moral damage caused by the medical institution.

In the case, the plaintiffs filed a lawsuit against the medical institution demanding the defendant to pay 1,000,000 GEL in moral damages caused by the death of the mother following incorrect treatment.

The court noted that damage caused to a person’s health during treatment in a medical institution is compensated in the form of non-contractual (tort) liability to the extent that the norms of tort law regulating the unlawful acts of medical service providers infringe absolute health and life protection rights. Accordingly, the legal basis for the claim is Article 1007-e of the Civil Code, and the supplementary regulations are represented by the Georgian laws “On Health Protection” and “On Patient Rights.”

According to Article 992-e of the Civil Code, the conditions for civil liability arising from damage to life and health caused by treatment in a medical institution are the same as for all tort obligations: damage, unlawfulness, fault, and causal connection. Article 1007-e indicates that unlawful acts include incorrect diagnostics and treatment carried out improperly by the medical staff of a medical institution, which caused the damage.

The unlawful act causing damage includes not only active acts but also omissions. To qualify medical worker behavior as unlawful, it is necessary to establish the fact of improper medical assistance. “Compensation for damage caused by treatment can only be satisfied if the damage caused to the person was directly caused by erroneous medical action, i.e., a causal connection is established between the unlawful act and the resulting damage. It must be irrefutably established that the damage was caused by the medical staff's action. Ineffective treatment or negative consequences of treatment per se do not necessarily give rise to medical staff liability. The damage must result from treatment errors made, meaning that if treatment is properly conducted, even if negative results occur, no doctor’s liability arises (see Supreme Court case № ას-1046-966-2017, July 20, 2018; case №260-244-11, June 27, 2011).”

The term “erroneous medical act” (also “erroneous medical action”) means the physician’s inadvertent performance of diagnosis or treatment inappropriate to the patient’s condition, which has become the direct cause of the inflicted damage. From this legal norm, it follows that damage caused by the physician to the patient should not be intentional; otherwise, such acts are excluded from the scope of “erroneous medical acts” under the Georgian Health Law. It is sufficient to establish the physician’s negligence, meaning failure to exercise the necessary diligence and care required by their professional duties. Diligence and care imply the physician’s performance of the necessary medical actions to a very high degree, according to recognized medical standards. “Medical error means violation by the doctor of generally accepted medical and ethical standards, legal regulations, which caused the patient to be diagnosed or treated inappropriately to their condition, thereby directly causing damage to the patient. The doctor has the burden of proof to show that the patient’s treatment was reasonable and error-free; the doctor is responsible for incorrect treatment and only such treatment's resulting negative effect (see Supreme Court case №1268-1526-09, May 25, 2010).”

The court stated that in this category of cases, the patient (or their relative or lawful representative) bears the duty to fully and convincingly present and declare the facts and to carry the burden of proof to substantiate the occurrence of a medical mistake. If the patient (or their relative or legal representative) fails to prove the claim, then medical error is not confirmed. Furthermore, the patient (or their relatives or legitimate representative) must produce and prove that the damage arose from the violation of the medical institution’s duty (see Supreme Court case № ას-111-111-2018, May 11, 2018). Accordingly, in the disputed case, based on Articles 102–103-e of the Civil Code, the plaintiff had the burden of proving the fact of damage caused to the patient by the medical institution's physicians, while under Article 1007-e of the Civil Code, the burden of proof distribution indicated that the defendant medical institution had to prove that all reasonable medical acts were performed by its staff for the correct diagnosis and treatment of the patient.

The court found that in the case at hand, the plaintiff carried the burden of proof and, based on relevant evidence, secured confirmation that the defendant clinic’s doctors committed erroneous medical acts, manifested in treatment unsuitable to the specific patient’s condition, directly connected causally with the occurrence of serious consequences (lung organ damage), which ultimately led to the patient's death.

The court noted that a person is a set of human spiritual values, and the term “moral damage” refers to damage caused in the sphere of these spiritual feelings and relationships, reflecting the existence of negative changes in the human psyche, which manifests as physical and spiritual suffering. Thus, moral damage is understood as a legally protected infringement of a non-property interest, which does not have material equivalence.

Based on all the above, the court partially satisfied the claim and imposed a moral damage compensation payment of 100,000 GEL on the defendant medical institution to be paid as a lump sum.

Gia Foladishvili
Lawyers of Georgia for an Independent Profession