Legal fees in patient injury cases

Patient injury compensation cases differ in many ways from other personal injury cases, such as personal injury following a traffic accident, occupational injury and liability as a result of negligence or strict liability. Compensation following a patient injury is legally defined in the Patient Injury Act, supplemented by the Injury Compensation Act and non-statutory compensation rules. The Public Administration Act and the Freedom of Information Act apply to the activities of the Norwegian System of Patient Injury Compensation (NPE) and the Patient Injury Board. This system has resulted in a somewhat confusing set of rules regarding which legal expenses can be claimed from NPE, and at which stages of a patient injury case. We get a lot of questions about this, and I will therefore review the stages of a patient injury case below and how this affects the possibility of getting legal expenses covered.

1. Legal fees for work against NPE in connection with the liability investigation

According to the Patient Injury Act, NPE is to be a neutral body that is to safeguard the injured party's interests in an objective manner vis-à-vis the treatment centre. For this reason, as a general rule, the injured party is not entitled to have NPE cover their legal fees in the initial phase, i.e. until a decision has been made on the basis for liability and compensation.

In special cases, section 11 of the Patient Injury Act allows you to apply for coverage of legal expenses during the liability investigation. However, this is a narrow exception, and primarily applies in cases where it is difficult, for example, to communicate with the injured party, or where the injured party has reduced mental abilities to such an extent that they cannot protect their interests in the case. It is also possible to apply for coverage of legal expenses during the liability investigation in more complicated, serious and fundamental cases where it is considered necessary and appropriate to have legal assistance.

2. Lawyer's fees for work against NPE in connection with determining the amount of compensation

Once a decision has been made establishing that the injured party is entitled to compensation pursuant to the Patient Injury Act, NPE will cover reasonable and necessary expenses for legal assistance in connection with determining the amount of compensation. The lawyer is not authorised to demand a higher hourly rate or number of hours covered from the injured party than that covered by NPE in connection with the assessment of the compensation.

3. Legal fees for work against the Patient Injury Board in appeal cases

If the injured party decides to appeal a decision made by NPE to the Patient Injury Board, the injured party must cover their own legal expenses in connection with the appeal. This applies to both appeals against liability decisions and decisions on the amount of compensation. If the injured party's appeal is upheld, the Patient Injury Board will cover and thus reimburse necessary and reasonable legal expenses in connection with the appeal in line with Section 36 of the Public Administration Act.

4. Lawyer's fees in connection with legal action against the State v/Patient Injury Board

If the injured party's claim for compensation under the Patient Injury Act is not upheld, or if the injured party does not agree with the determination of the amount of compensation in the decision made by the Patient Injury Board, a lawsuit must be filed against the Norwegian State by the Patient Injury Board within six months of receiving the final decision from the Patient Injury Board. The injured party must cover their own legal expenses in connection with the legal process. However, most legal aid insurance policies in home contents/home insurance cover disputes in patient injury cases, so that large parts of the legal expenses can be covered by the legal aid insurance.

5. Free legal advice and free legal defence in patient injury cases

If the injured party fulfils the financial conditions for free legal aid, it follows from the Legal Aid Act 11 second paragraph no. 3 that an application for free legal advice can be granted in cases concerning compensation for personal injury. However, patient injury cases under consideration by the NPE or the Patient Injury Board are exempt from this scheme, so that the County Governor does not grant free legal advice until a decision has been made by the Patient Injury Board.

When a final decision has been made by the Patient Injury Board, section 6.4.2 of circular G-12/05 states that the public sector covers the legal costs of judicial review of decisions made by the Patient Injury Board in special cases. An example of such special cases is when there is new medical documentation in the case. The reason for this is that the public sector's duty to provide information and guidance will generally replace the need for legal assistance in such cases. When a final decision has been made by the Patient Injury Board and the injured party wishes to appeal the decision to the courts, it is therefore possible to apply for free legal representation.

As the above illustrates, the patient injury scheme can appear confusing. Our lawyers have good knowledge of the regulations and are happy to provide guidance on any questions or ambiguities.