foreign medicalWhat happens if you are the victim of Medical Negligence in respect of a procedure/treatment in another EU Country?

With far more people travelling abroad for Medical Treatment thAn has ever been the position before, what happens if you are the victim of Medical Negligence in that other EU Country ?   Do you have to deal with your compensation claim in that Country?

This is an issue governed by Council Regulation 44/ 2001 which has full force of Law in all EU Countries.    The general rule is that tort cases must be conducted in the State where the Defendant is domiciled or has its business operation.  There are some exceptions.

In the case of Medical Services Proceedings can be brought where the Injured Party is domiciled provided the Service Provider, though based in a different EU Country, pursues commercial or professional activities or directs such activities in the Country where the Injured Party is domiciled.

The Case of Hotel Alpenhof GmbH analysed this provision that allows the Injured Party to bring proceedings in his/her own Country against a business or Professional based in another EU Country.   There needs to be evidence that the Service Provider was actively looking to do business and attract Clients from the Injured Party’s Country.   There needs to be evidence of a “clear expression of the intention to solicit the custom of that State’s consumers”.

Each case must be considered on its own facts.   There needs to be, essentially, tangible evidence of proactivity in getting Clients/Customers from the Country of the Injured Party.

Two contrasting Medical Negligence Cases in 2013/14 serve to show the distinctions that can arise.

In the McDonald Case, brought against a Dutch Based Medical Facility, the Injured Party was found to have a right to issue proceedings in Ireland (where domiciled) as “The Web-based promotional material that prompted the Plaintiff to contact the Defendants had been directed at both the UK and Ireland and was written in English, not Flemish/French.  It had stated: “we are based in Belgium with clinics in the UK and Ireland……”.   There were Irish Telephone Contact numbers and testimonials from Irish-based Clients”.

In comparison, in the Harkin Case the Court found no evidence of an intention on the defendant’s part to direct its activities to Ireland and the Injured Party was not, accordingly, entitled to bring Proceedings in Ireland.

If undergoing any Medical Procedure in other UK Countries your experience will, hopefully, be very positive. However, as a precaution it is most important to retain copies of all documents pertaining to the intended procedure to include full Website Details, promotional materials, correspondence etc.



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