A. Right to a hearing regarding a violation of patients’ rights
A patient has the right to a hearing regarding a violation of patients’ rights at the first and second instance, namely:
a first hearing regarding patients rights at the health care service provider;
a second hearing regarding the violation of patients’ rights at the Commission of the Republic of Slovenia for the Protection of Patient Rights.
If directly, during health care, a patient expresses dissatisfaction with the course of health care or with the attitude of a health-care worker or co-worker, an attempt should be made to resolve the dispute immediately with additional explanations or measures. This means that in the event of any disputes in the course of treatment, patients shall first contact the doctor who treated them, try to talk to him/her and find a solution.
If it is not possible to reach an agreement or the patient is not satisfied with the explanations given by the doctor, the latter shall inform him/her of the right and procedure to lodge a request for a first hearing regarding the violation of patient rights.
The patient shall lodge the request for a first hearing regarding a violation of patients’ rights with the responsible person of the health care service provider (the responsible person is usually the director). Each provider shall publish in a visible place in the waiting room, at the entrance to the department or on a pin board:
- the name of the responsible person and his/her phone number,
- all required data on the process of lodging the first request,
- name, address, phone number and the official hours of the nearest advocate of patients’ rights.
Time limits on lodging a first request:
- regarding an allegedly inappropriate attitude of health-care workers or co-workers: no later than 15 days from the alleged violation,
- regarding an allegedly inappropriate conduct of health-care personnel in providing health care: no later than 30 days after the health care was provided,
- if the patient was only later informed of the violation, or if the consequences became evident later: within three month from the expiry of the time limits indicated in the preceding indents.
The first request for a hearing regarding the violation of patients’ rights may be lodged orally on record or in writing with the responsible person of the provider. The request for the first hearing must contain:
- name, address and contact information of the patient,
- description of the alleged violation,
- information on health-care workers or co-workers involved,
- time and place of the alleged violation,
- possible consequences of the alleged violation, and
- suggestion to resolve the dispute.
The responsible person may perform an interview with the patient and the health-care worker involved, who can explain the circumstances of the violation in question. The responsible person may also perform an interview with another expert who has the required knowledge in the field of the violation in question, and review the medical files.
Minutes shall be prepared on the course of the oral hearing. The purpose of the oral hearing is in particular to conclude an agreement on the method of dispute settlement. The agreement is concluded when signed by the patient and the responsible person. If the agreement on the method of dispute settlement is not concluded, this shall be indicated in the minutes. The responsible person must instruct the patient on the possibility of lodging a request with the Commission of the Republic of Slovenia for the Protection of Patients’ Rights.
Address for lodging the second request for a hearing regarding patients’ rights:
Komisija RS za varstvo pacientovih pravic
The proceedings before the Commission may be concluded by means of mediation, settlement or Senate hearing. The right of judicial protection in an administrative dispute may be exercised against the Senate’s decision.
B. Right to free assistance in exercising patients’ rights
In exercising patients' rights, patients may contact advocates of patients' rights that offer confidential and free assistance (e.g. counselling, providing guidelines, assistance with filing legal documents in accordance with the Act or in accordance with their authorisation).
List of advocates in Slovenia
C. Complaint procedure relating to reimbursement of costs
Procedures for the reimbursement of costs are conducted with the insurance holder in the country in which the individual has health insurance. The insured individual may file a complaint in their Member State with the insurance provider which conducts the procedure for reimbursing costs.
D. Establishing criminal and damage liability
A health care professional takes moral, professional, criminal and material (damage) responsibility for his or her work. In addition or instead of the health care professional, this liability may be assumed by their employer or health care provider as a legal entity.
Establishing criminal liability
Establishing damage liability
Criminal liability is liability of each legal and natural entity who has committed a criminal offence. It is enforced by a court's judgement in which the perpetrator is found guilty of an act or omission defined by law as a criminal offence and is therefore imposed a criminal sanction.
A perpetrator who was sane when the criminal offence was committed and who is found to have acted with intent or negligence is found guilty. A criminal offence is committed with intent if the perpetrator was aware of his or her actions and wanted to commit the act (direct intent) or if he or she was aware that an offence could be committed and consented to doing it (eventual intent). A criminal offence is committed through negligence if the perpetrator did not act with due care even if they were aware that such an act could be committed but recklessly thought it would not happen or that it would be prevented (wilful negligence), or if they were not aware that such an act could be committed but should have been aware regarding the circumstances and their personal qualities (ordinary negligence).
The criminal sanctions system includes sentences (e.g. prison, fine), admonitory sanctions (imposed instead of sentences, e.g. suspended sentence, judicial admonition) and safety measures (imposed in addition to the sentence or admonitory santence, e.g. barring from performing the occupation, confiscation of objects). Confiscation of property benefits and publication of judgement may also be imposed on the perpetrator.
The court may bar the perpetrator from performing a certain profession, autonomous activity or function if by abusing their occupation, position, activity or function they committed a criminal offence and if the court has probable cause to believe that their further performing of such an operation would therefore be dangerous. At this time, the length of such measures is determined (not less than a year and not more than five years).
In the Republic of Slovenia, performing a profession despite the imposed barring is defined as a criminal offence (violation of prohibition from exercising the profession), and, at the same time, non-existence of final judgement with such sanctions is a prerequisite for performing private health services.
Limitation of criminal prosecution
In principle, criminal prosecution is barred from taking place if:
- 30 years have passed since a criminal offence for which a prison sentence above 10 years may be imposed was committed;
- 20 years have passed since a criminal offence for which a prison sentence above 5 years may be imposed was committed;
- 10 years have passed since a criminal offence for which a prison sentence above one year may be imposed was committed;
- 6 years have passed since a criminal offence for which a prison sentence up to one year or a fine may be imposed was committed.
The time limit for the limitation of criminal prosecution commences on the day the criminal offence was committed.
Court of jurisdiction in criminal matters
Second-instance courts are Higher Courts (Senate)
and the third-instance court is the Supreme Court of the Republic of Slovenia (Senate).
Territorial jurisdiction is usually vested in the court in the territory of which the criminal offence was committed, while a private lawsuit may be filed with the court in the territory of which the defendant (health care professional or health care provider) has permanent or temporary residence (or headquarters).
Language in criminal proceedings
Criminal proceedings are conducted in Slovenian. If a court officially uses the language of the Italian or Hungarian minorities, the proceedings may also be conducted in the language of these ethnic groups.
Lawsuits, complaints and other applications are filed with the court in Slovenian. In areas where members of Italian or Hungarian minorities live, they may file applications in Italian or Hungarian if the court officially uses this language.
In investigatory and other judicial acts and at the main hearing, parties, witnesses and other participants to the proceedings have the right to use their own language. If the judicial act or the main hearing is not conducted in their language, interpretation of what they and the others say and translation of documents and other written evidence shall be guaranteed.
Invitations, decisions and other writings submitted by the court are in Slovenian. A court which officially uses the Italian or Hungarian language also submits invitations in that language, while decisions and other writings are only submitted in that language when the proceedings are conducted in both official languages.
Communication between the parties to the procedure
Private lawsuits, charges, legal means and other statements are filed in writing (written application in physical or electronic form) or orally, subject to entry in the records.
When an injured party enters into the proceedings as the plaintiff, they must pay the court fee. If the defendant is imposed a final criminal sanction in these proceedings or if the sanction has been remitted, the defendant must pay for the first-instance proceedings, otherwise the injured party as the plaintiff must pay the fee. The provision referred to in the preceding sentence also applies to criminal proceedings in a private lawsuit.
- Criminal Code,
- Liability of Legal Persons for Criminal Offences Act,
- Criminal Procedure Act,
- Code of Obligations,
- Civil Procedure Act.
Damage liability is an individual's liability to cover the damages for which they are liable. In accordance with the principle of prohibition of infliction of damage, everyone must refrain from actions which could inflict damage on another individual.
The four assumptions below must be satisfied cumulatively for damage liability:
- unauthorised or inadmissible harmful action by the perpetrator or his or her object,
- causal relationship between the unauthorised action and the damage,
Damage comprises the diminution of property (ordinary damage), prevention of the appreciation of property (lost profits), the infliction of physical or mental distress or fear on another person (non-pecuniary damage).
Types of damage and compensation:
- pecuniary damage: restitution of the damaged property to the original state,
- non-pecuniary damage: satisfaction in non-pecuniary form (publication of judgement or apology) or as monetary compensation.
The most frequent examples of inadmissible action in health services are:
- treatment error (violation of professional rules),
- absence of explanatory duty of the health care professional or the absence of the injured party's (patient's) consent.
Any infliction of damage is unlawful, except if the unlawfulness of the action has been excluded, e.g. by the injured party's consent. If the health care professional receives permission by the patient to do something, they cannot be requested to cover the damage inflicted in this way.
In the absence of a legal definition of an error, a general rule was formed in practice stating that a treatment error is a deviation from the generally accepted professional rules and customs arising from the lack of due care by the health care professional. In legal practice, it is also referred to as a medical error. Health care is not limited to treatment sensu strictu but includes other health services of diagnostics, therapy, rehabilitation, nursing and other services performed by health care professionals during patient treatment.
It is not a treatment error when a health care professional acted with due professional care and diligence but harm to the patient occurred nevertheless. This is called complication, and health care professionals and institutions are not liable for payment of compensation. A complication can occur during or after the completed treatment, rarely and accidentally, and cannot be prevented using professionally correct and careful conduct despite the predictability.
Inadmissible action can be alleged against a health care professional when the treatment was performed according to professional rules and customs, but the health care professional failed to fulfil the explanatory duty (did not explain all possible complications, etc.). In such cases, it is sufficient that an interference with the patient's physical integrity or their right to self-determination and determination regarding their treatment was made, even if the treatment did not result in aggravation of the patient's physical health but the patient did not provide a prior informed consent. The extent of the explanatory duty is inversely proportional to the urgency of the medical intervention.
The damage must result from unauthorised or inadmissible action by the perpetrator or his or her object and may not be just an unfortunate coincidence. In case of fault-based liability, the injured patient as the plaintiff must prove inadmissible action, causal relationship and damage, and the defendant (health care professional) must prove that the damage that arose was not their fault.
When the damage arises in relation to a particular dangerous object or activity, the damage is deemed to have arisen from this object or activity except when proven the latter was not the cause.
The indemnifying party's fault
In Slovenia, there is a distinction between subjective and objective liability.In health care, there is more rigorous subjective or fault-based liability of a health care professional with reverse burden of proof seen through their careless action or contra legem artis action (more rigorous professional diligence of health care professionals). When an intervention was made with the patient's consent, the relationship between the doctor (or the institution) and the patient is contractual, which applies both to a private doctor and a doctor employed in a public health care institution. A doctor violates contractual obligations when acting contrary to professional measures, carelessly or in the absence of the patient's consent. The violation of the doctor's due diligence is judged more severely, i.e. according to the principle of due skill, care and diligence. Being a member of a professional group, a health care professional must act with increased care, i.e. according to the professional rules and customs. They must observe the recognised medical doctrine and applicable professional and ethical codes.
The fault is established when a health care professional inflicts damage intentionally (with intent) or through negligence (treatment error).
In certain rare cases, rules for objective liability may be applied in health care (e.g. use of modern medical technology). The holder of a dangerous object is liable for the damage therefrom; the person involved in dangerous activities is liable for the damage therefrom.
The person responsible must restore the state to that before the damage was inflicted. This is particularly relevant where pecuniary damage is concerned (which may also be inflicted when performing health services, but rarely), e.g. costs of staying in the hospital, travel costs, costs for medicinal products and medical devices. In health care, harm to the patient's health and other types of non-pecuniary damage usually occur, and restoration to the original state is usually not possible or the damage cannot be eliminated fully. In such cases, the person responsible must provide adequate monetary compensation to the injured party to cover the damages.
Damage liability is deemed due from the moment the damages occurred.
The injured patient is awarded fair monetary compensation (independent of the potential pecuniary damage) for:
- physical distress and inconveniences suffered during treatment,
- mental distress suffered owing to a reduction in life activities or disfugurement,
The determination of the amount of compensation for non-pecuniary damage takes account of the individualisation principle (all circumstances of a concrete case are considered, particularly the severity and duration of distress and fear) and the principle of objective conditionality of the amount of compensation (significance of the affected goods and the purpose of compensation which should not support tendencies incompatible with its nature and purpose must be considered). This is not about covering the damages or punishing the person who inflicted the damage.
If someone dies, the court may award fair monetary compensation to their close relatives (spouses, children and parents, and, under certain conditions, to brothers and sisters or common-law partners) for their mental distress. The same applies when severe disability is inflicted on a person.
At the request of an injured party, the court may also award compensation for future non-pecuniary damage if according to the customary course of events it is certain that the damage will last into the future.
When the injured patient contributes to (e.g. fails to observe the doctor's instructions) or increases the damage, they have a right to a proportionally reduced amount of compensation. If it is impossible to establish which part of the damage is caused by the patient's action, the court awards compensation with due consideration of all circumstances of the case.
Liability of a health care provider in the capacity of employer
The legal or natural entity with whom an employee was working at the time the damage was inflicted shall be liable for damage inflicted on a patient by a health care professional during work or in connection with work, unless it is shown that the health care professional acted as was necessary under the given circumstances. Fault-based damage liability of a health care institution results from a professional error committed by a doctor or health care professional employed in this health care institution.
The health care institution must organise the work in such a way to provide services of adequate quality and safety as required and typical for a health care institution in the capacity of an expert in a certain profession (professional diligence). If the institution acts as required, it shall not be liable.
The patient has the right to demand the reimbursement of damages directly from the health care professional if such damages are inflicted intentionally.
Any person that reimburses a patient for damages inflicted by a health care professional intentionally or out of gross negligence has the right to demand the reimbursement of the sum paid out from the health care professional (recourse claim) within six months of the payment of the compensation, otherwise the right expires.
Limitation of damage liability
The right to demand the fulfilment of the obligations expires with the limitation. The time limit for the limitation commences on the first day after the day the creditor had the right to demand the fulfilment of the obligations unless otherwise specified by law. The limitation begins when the last day of the specified period is over.
Damage claims for the damage inflicted expire three years from the time the injured party has been informed of the damage and of the person who inflicted it. In any case, this claim expires five years after the occurrence of the damage. If the damage was inflicted through a criminal offence and a longer limitation period is prescribed for criminal prosecution, the damage claim against the responsible person expires when the time limit specified for the limitation of criminal prosecution expires.
Limitation is interrupted by filing a lawsuit and any other creditor's action against the debtor before the court or another competent authority in order to establish, secure or recover the claim. After the interruption, the limitation period starts anew, and the time passed before the interruption shall not be counted against the limitation period.
Procedure of establishing damage liability
In principle, the parties must strive to solve the disputes through coordination, intervention or in another amicable way (settlement, mediation, …). If peaceful resolution of the dispute is not possible or the parties decide against it, the dispute shall be resolved before the court of jurisdiction.
Initiation of proceedings
Civil proceedings begin with a lawsuit.
The lawsuit must include:
- a definite request with regard to the main and side claims,
- the facts supporting the plaintiff's claim,
- the evidence substantiating the facts,
- other data required for any application.
Documentation necessary to file a lawsuit includes the data on the infliction of damage, medical documentation on the course of treatment, evidence on any pecuniary damage, additional documentation affecting the amount of compensation and personal information of the parties involved, such as photocopies of different medical records and statements by the injured party, witnesses etc. Medical documentation to receive compensation includes reports by specialist doctors, physical therapy reports, sick notes, certificates on completed treatment. Evidence on the inflicted pecuniary damage mainly includes invoices for medicinal products or medical devices, proof of loss of income due to the absence from work and of any other property damage inflicted on the injured party.
Court of jurisdiction
A single judge normally judges in civil proceedings.
The jurisdiction to judge in matters of indemnity claims if the value of the disputed object does not exceed EUR 20,000 is vested in local courts, and in district courts in matters of indemnity claims if the value of the disputed object exceeds EUR 20,000. The jurisdiction to decide upon appeals against the rulings of local and district courts is vested in higher courts, usually with a senate composed of three judges. The jurisdiction to decide upon appeals against the rulings of higher courts, upon the proposal to allow revision, upon the revision and the request for the protection of legality is vested in the Supreme Court (deciding in senates).
The jurisdiction for the trial is usually vested in the court which has general territorial jurisdiction for the defendant (i.e. the court in the territory of which the defendant has permanent residence). If a court in the Republic of Slovenia has jurisdiction to solve the disputes arising from contractual relations because the place of the fulfilment of the obligations is in Slovenia, the territorial jurisdiction is vested in the court in the territory of which the obligation subject to the dispute should have been fulfilled. The territorial jurisdiction to decide upon tort liability is vested, in addition to the court of general territorial jurisdiction, also in the court in the territory of which the tort has been committed and in the court in the territory of which the damage has occurred. The territorial jurisdiction is thus usually vested in the court in the territory in which the sued health care institution has its seat or the sued health care professional has permanent residence.
Language in the proceedings
Civil proceedings are conducted in the language the court officially uses (in Slovenian, and in Italian or Hungarian in the territories where these minorities live).
At the hearings and other oral process acts, parties and other participants to the proceedings have the right to use their own language. If the proceedings are not conducted in their language, interpretation of what is being said at the hearings and of documents used at the hearings for the purpose of proving is assured (through an interpreter) upon their request or if the court establishes they do not understand Slovenian.
Invitations, decisions and other court writings are submitted to the parties and other participants to the proceedings in the language officially used by the court. The parties and other participants to the proceedings file lawsuits, appeals and other applications in Slovenian or in the language of the minority which is officially used by the court.
Communication between the parties to the procedure
Applications (lawsuits, response to a lawsuit, legal means and other statements, proposals or notes filed outside the trial) must be comprehensible and must include everything required in order to be addressed: indication of the court, name and surname and permanent or temporary residence or seat of the parties, their potential legal representatives and plenipotentiaries, the disputed object and the content of the statement. The applicant must sign the application except where it is not possible due to the form of the application.
The application is filed in writing (hand-written or typed and signed (physical application) or written electronically and signed with secure electronic signature verified with a qualified certificate). A written application is filed by sending it by mail, e-mail, by means of communication technology or by giving it directly to the authority. The electronic application is filed by submitting it by e-mail to the information system which provides the applicant with an automatic confirmation of the receipt of the application.
The applications that must be submitted to the other party must be submitted to the court in the number of copies required for the court and the other party and in the form which allows the court to submit it. This also applies to appendices.
Costs of proceedings
Preliminary, every party covers costs incurred through their actions.
The party which is not successful in the lawsuit must reimburse the costs to the other party. If a party has partial success, the court may, depending on the success achieved, decide for each party to cover their own costs, or may impose on one party to reimburse a proportionate share of costs to the other party, with due consideration of all circumstances of the case.
The court fee is due upon filing of the lawsuit. It is usually paid by the party which proposes the initiation of the proceedings.
The party may appeal the judgement issued at the first instance within 15 days of the service of the judgement's transcript. The court of second instance shall decide on the appeal.
Extraordinary legal means are as follows:
- request for the protection of legality,
- action for annulment of a court settlement,
- reopening of proceedings.
- Criminal Code,
- Liability of Legal Persons for Criminal Offences Act,
- Criminal Procedure Act,
- Code of Obligations,
- Civil Procedure Act.