The President of the Republic of Poland submitted to the Sejm a draft law adding to the Civil Code a provision important for relatives who are in a vegetative state, e.g. as a result of a traffic accident or a medical error. It involves granting them the right to compensation for the harm they have suffered in the form of broken family ties as a result of serious and permanent bodily harm. This solution is needed due to the currently existing discrepancy in jurisprudence at the level of the Supreme Court.
The president proposes to add Art. 446[2] to the Civil Code. The provision would grant the immediate family members of the victim compensation for the harm suffered in the form of broken family ties as a result of serious and permanent damage to the body or health of the victim, as a result of which the victim is in a vegetative state.
– This is a necessary initiative, as it is about confirming that the family bond is a personal right, the violation of which deserves redress. Families of seriously injured victims have been living in uncertainty for several months now. The introduction of statutory regulations will prevent their rights from being questioned, for example, by the insurers of the perpetrators of damages, as a result of which the injured persons found themselves in a vegetative state – says dr. Mariusz Jerzy Golecki, professor at the University of Łódź, the Financial Ombudsman.
He reminds that insurers gained a basis for such a position as a result of the resolution of the Supreme Audit and Public Affairs Chamber of the Supreme Court of October 22, 2019 (reference number I NSNZP 2/19). It took a completely opposite position to that presented a few months earlier by the Civil Chamber of the Supreme Court. On March 27, 2018, it adopted a resolution on the motion of the Financial Ombudsman (III CZP 36/17) and in two other cases concerning the same problem (III CZP 69/17 and III CZP 60/17). The conclusion of all three resolutions was clear: The court may award compensation for harm to the relatives of the victim who suffered a serious and permanent health impairment as a result of a tort. On this basis, compensation could be paid, for example, from a motor third party liability insurance policy, if the aggrieved party suffered a car accident. The same rules would also apply to the relatives of people who suffered as a result of medical errors, e.g. those committed during childbirth.
The Financial Ombudsman acts to protect the rights of the victims’ families
Seeing this discrepancy and its negative consequences for the aggrieved parties, the Financial Ombudsman applied to the Supreme Court for a resolution. (more details in the link below). He emphasized that, in his opinion, such situations are undoubtedly an example of infringement of the personal rights of relatives, which undoubtedly deserves financial compensation. He noted that from March 2018, insurers began to change their approach, in line with the position of the Civil Chamber.
Some insurers still question such entitlement of the relatives of the victims. For example, the Ombudsman dealt with the case of a victim in 2005. He was 15 when he was hit by a car. The boy suffered injuries in the form of a contusion of the brainstem, which resulted in swelling of the brain and circulatory and respiratory failure. Among other things, a tracheotomy was necessary, i.e. cutting the trachea to ensure breathing. Currently the injured person is over 30 years old and is incapable of functioning independently, and requires round-the-clock care and assistance. He became permanently disabled, both mentally and physically, and was thus excluded from active life. There is no contact with him, he does not speak, does not give clear and understandable signs in response to questions.
In connection with this situation, the victim’s mother, who takes care of him on a permanent basis, applied to the insurer for compensation in the amount of 200,000 PLN. The legal basis is Art. 448 of the Civil Code in connection with Art. 23 of the Civil Code and Art. 24 of the Civil Code as compensation for the harm resulting from the violation of personal interests in the form of damaged family ties and relationships due to the son’s permanent and serious disability.
The insurer, who issued the motor third party liability insurance policy for the perpetrator of the accident, refused to pay compensation. He indicated that the injuries suffered by the injured person did not cause him to be in an irreversible state of a coma or a permanent vegetative state. Thus, in the opinion of the insurance company, the personal interest of the victim’s mother was not infringed.
The Financial Ombudsman also dealt with cases of people injured as a result of medical errors. In this case, the mere demonstration of the responsibility of a medical facility is very difficult and time-consuming. Even if this happened and the insurers paid out a number of other benefits due in such a situation, they would refuse the previously mentioned compensation. In one of the cases, a newborn was infected in a hospital. Currently, the child has hemiparesis, brain changes, epilepsy, and nystagmus. The child does not speak, does not walk, sits down with help, and its intellectual development is delayed. Nevertheless, the insurer did not pay adequate compensation here as well.
