Obtaining compensation after a medical error
Dear Marijn,
Even though my wife is the most beautiful woman on this planet, she insists on having cosmetic surgery. The operation, which should have been pretty straightforward, went horribly wrong and now my wife is facing serious consequences. Apart from the mental suffering, she also needs to go through several additional operations. In the meantime, we found out that the surgeon who was in charge of the operation at the clinic did not respect applicable standards on hygiene and safety. Are there any legal remedies available to us?
Unfortunately, stories such as yours are not that uncommon in Vietnam. However, Vietnamese law does provide some solace. According to the Law on Medical Examination and Treatment of 2009, medical establishments are required to control bacterial contamination, sterilize their medical equipment, guarantee personal hygiene, and use protective clothing.
If you believe the clinic did not respect these obligations, then your first step is to file an official complaint with the competent State authority. In your case, that would be the Ho Chi Minh City Department of Health.
Under the same law, medical practitioners are required to observe professional and technical regulations, and to take responsibility for their medical examination and treatment. If a practitioner breaches these obligations then, under the Penal Code of Vietnam, a practitioner may be sentenced to prison time (between one and five years) and may also be subject to a fine (between VND5 million and VND50 million).
Apart from potential criminal liability, both the surgeon and the clinic may have to pay administrative penalties. Vietnamese law states that a failure to effectively control bacterial contamination may lead to a penalty of between VND5 million and VND10 million.
Now let’s look at civil liability and the possibility of claiming damages. The Law on Medical Examination and Treatment states that either the clinic itself or its insurance company must pay damages to a patient if the incident is the result of professional and/or technical mistakes. This is partially echoed by Vietnam’s Civil Code, which entitles you to claim damages from the surgeon. If it is financial compensation you are after, I would recommend you seek the assistance of an experienced legal counsel.
In short, you and your lawyer will need to prove that the clinic and/or the surgeon failed to respect their obligations as prescribed by law. Please keep in mind that the requirement to compensate for damages is often restricted to technical errors, which are caused by the negligence and/or carelessness of medical practitioners.
You can claim financial losses for the expense of treatment, nursing and rehabilitation, as well as for loss of income. And depending on the circumstances, you may also claim for mental suffering, even though that will be much more difficult to prove in practice.
Before you end up in lengthy court proceedings, I suggest you have a careful look at your own medical insurance policy. Even though cosmetic surgery is often excluded from coverage, it may actually be worth reaching out to your insurance company first before taking any legal action. I wish your wife a speedy recovery!
Every month, Marijn Sprokkereef answers legal questions from Oi readers. If you have any legal questions you want answered, send them to legal@oivietnam.com.
