Redress for patient injury

I often find that the injured party wonders whether it is possible to receive compensation for the pain, suffering and fear they have had to endure - i.e. redress compensation. In the following, I will take a closer look at the possibility of claiming redress after a patient injury.

Claims for compensation following a patient injury must be submitted to the Norwegian System of Patient Injury Compensation by submitting a notice of injury. To be entitled to compensation under the Patient Injury Act, the injury must be due to a failure in the provision of health care, including information failure, technical failure, infection, etc. Losses in a patient injury case are assessed in accordance with the Damages Act and general rules of tort law. However, section 4 of the Patient Injury Act stipulates that compensation (redress) for damage of a non-economic nature pursuant to section 3-5 of the Patient Injury Compensation Act cannot be claimed from NPE.

A claim for redress must therefore be made directly to the place of treatment, or to the personal tortfeasor under the general rules of tort law. In line with section 3-5 of the Damages Act, it is required that the tortfeasor(s) have caused the patient injury intentionally or through gross negligence. In Rt-1989-1318, the Supreme Court clarified what constitutes «gross negligence» to mean «a marked deviation from normal prudent behaviour. It must involve behaviour that is highly blameworthy, i.e. where the person in question is significantly more to blame than in the case of ordinary negligence.» This starting point must naturally be seen in light of the professional responsibility of healthcare professionals, so that if the professional level of the healthcare professional is not up to scratch, this may, under the circumstances, constitute gross negligence. However, this is a strict condition, so it takes a lot to characterise the healthcare professional's behaviour as grossly negligent.

A review of what is included in the failure condition in section 2 of the Patient Injury Act shows that there is a significantly higher threshold for being entitled to redress as a result of injury caused by a healthcare professional's gross negligence. However, our experience at Advokatfirmaet Halvorsen & Co is that in cases where there is a marked deviation from the professional norm, where routines have not been followed, where the healthcare professional has inexplicably assessed the situation incorrectly, etc. the treatment centre acknowledges liability and pays compensation for damages when a direct claim is made.

In very serious cases, the healthcare professional's gross negligence may cause the patient's death or the injured party may die of other causes. Here you can read more about the bereaved's right to redress when the deceased has suffered a patient injury.