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Medical disciplinary proceedings in Poland |  |  |
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Medical disciplinary proceedings in Poland - general information. Legal basis
Professional liability is an additional responsibility procedure, not being a part of the common law, (which pertains to all citizens). The principal proceedings for common libel regarding physicians are governed by civil or penal law. Employed physicians may also be held responsible for their conduct in a form of disciplinary proceedings conducted by the employer. Each of the above mentioned procedures is independent, governed by its own regulation and the said proceedings may be conducted simultaneously. Professional liability proceedings (professional disciplinary proceedings) are based on regulations of the May 17, 1989 Law on Medical Chambers and the September 26, 1990 Enactment of the Minister of Health and Social Care pertaining to the medical professional liability proceedings. All matters not regulated by the above, are governed by the Code of Criminal Procedure.
Who may be called to responsibility?
The scope of medical professional liability is clearly defined. It encompasses the members of the physicians' self-governing body, to which belong all members of Physicians Chamber or - in other words - all physicians listed in the registers maintained by the Regional Medical Chambers. Persons being in a possession of a medical diploma but without a license to practice, even if they possessed such a license previously, are not subject to the above proceedings. Initiation of proceedings is decided by the factual status on the day of receiving a complaint. If a physician does not have a license to practice his profession then the Screener for Professional Liability refuses to institute explanatory proceedings.
What charges may be subject of professional liability proceedings?
The objective scope of professional liability is defined rather generally, and the prohibited conduct is not being specifically defined. The Medical Chamber Law states that physians are being liable to professional disciplinary proceedings for "conduct not befitting and being in breach of the code of ethics and professional deontology and of regulations pertaining to the physician's profession." The principles of ethics and deontology are established in the Medical Code of Ethics (Kodeks Etyki Lekarskiej - KEL). The regulations pertaining to performing physician's profession are contained in the December 5, 1996 Physician's Profession Law, listed in the Journal of Laws of 1997, No. 28 pt. 152 as well as numerous other normative acts. The objective scope is therefore quite extensive, all the more so that both the KEL as well as the law on physician's profession do not so much define what is prohibited as what is indicated as proper conduct.
Professional disciplinary proceedings bodies
These are the Screener for Professional Liability (SPL) and medical courts. The SPL considers the filed complaints against a physician and conducts explanatory proceedings (fulfilling a role similar to that of a prosecutor in criminal proceedings), the courts adjudicate on the motion for the imposition of a penalty submitted by SPL. The first instance proceedings are usually conducted by the Regional Screener and the Regional Medical Court (RMC) of the Chamber of which the defendant had been a member of on the day of the complaint. The Supreme Screener for Professional Liability and the Supreme Medical Court (SMC) hear all appeals from verdicts and decisions passed in the first instance proceedings. The members of the professional liability bodies are elected by the regional and national medical conventions for a 4 year term and carry out their function in a form of a voluntary social service.
The Parties of the proceedings
Similarly to other liability proceedings, the medical liability proceedings are adversarial, in other words based on the participation of at least two equal opposing parties. The SPL represents the injured party as well the interests of the professional corporation and fulfills the role of a prosecutor. The injured person is not a party in the proceedings and, as opposed to criminal proceedings, there is no position of an subsidiary prosecutor. The party opposing the SPL, is the defendant who may have up to three defense counselors chosen from among the doctors (members of the Medical Chamber) or defense lawyers. The bodies in charge of professional disciplinary proceedings are obliged to maintain the proper course of the proceedings (adhering to procedural principles) as well as to inform the participants of the proceedings about their rights (such as submitting evidentiary motions, access to the records of the proceedings in case, refusal to testify, the right to lodge a complaint and an appeal).
The course of the proceedings
Medical disciplinary proceedings cannot be initiated if 3 years have passed since the act in question had been committed, while a penalty must not be imposed after 5 years from the date of the act. If the said act implicates criminal proceedings then the statute of limitations for professional liability takes place no sooner than the criminal statute of limitations. The SPL initiates explanatory proceedings after "obtaining credible information pertaining to the offense in performing medical duties". Most frequently it is an action of the injured person but the SPL is obliged to start the proceedings based on any other information, which he will find to be credible. If the initial evaluation of the complaint or information shall unequivocally indicate that it is not credible, the SPL may refuse to start the proceedings. The case in which explanatory proceedings had been opened can be either discontinued or brought to the court with motion for a penalty. The motion for a penalty (being an equivalent of an indictment act) is then heard by a court of the 1st instance during a court session, which is open only to members of the medical self-governing body. Cases pertaining to doctors holding a position in the the self-governing medical bodies are being considered in the 1st instance proceedings by SMC. SMC hears all appeals to 1st instance verdicts and decisions. The jury in the 1st instance is composed of three doctors, members of the RMC. The RMC sets the date for the proceedings and informs all persons whose presence at the proceedings is necessary. The SPL and the defendant constitute the Parties, the injured person (usually a patient or his family member) as a rule is a witness in the case.The verdict of the medical court may be:
- the case is sent back to the SPL with the objective of correcting the motion for penalty and/or supplementing the explanatory proceedings,
- the procedure is discontinued,
- an acquittal,
- finding the defendant guilty and passing a sentence of:
- an admonition,
- a reprimand,
- suspension of the license to practice for a period from 6 months to 3 years,
- irrevocable withdrawal of the right to practice without the possibility of application for a repeated registration as a practicing physician.
The above rules had been in place since 1989. In 2002 the Law on Supreme Court changed the regulations concerning participation of Supreme Court Judges in SMC hearings and since 2003 the SMC has been composed of physicians only (till 2002 the chairman of the 5 persons jury was a Supreme Court Judge). The Medical Chamber has suggested several amendments to regulations governing medical professional disciplinary proceedings since 1994. Main directions of these amendments would be giving the injured person a full position of the party in proceedings, making the hearings more open, increasing the choice of penalties which - at present - are either relatively light or very severe. The suggestions have been submitted to legislators and are being discussed.
Dr. Romuald Krajewski
Chairman of the Supreme Medical Court
ul. Konduktorska 4, Warsaw, Poland
Warsaw, February 7, 2004