Lithuania

ENAs reported in last year’s Yearbook,2 from 1 January 2020 the Law had established a model of no-fault medical liability. The amendment under discussion sought to address several ambiguities and inconsistencies that were noticed even before the entry into force of the no-fault liability model. First, the newly introduced notion of ‘unavoidable damage’ was amended because it was perceived to be too general and vague, which gave rise to a perception that the notion was too obscure. It was previously defined as damage which was unrelated with the medical services provided or, if it related to those services, those which occurred due to circumstances which were not foreseeable to the medical services provider, which were not in its control or which it could not prevent. After an amendment, it is defined as damage, inflicted on the patient’s health due to medical services, but which occurs due to circumstances which were not foreseeable, and which could not be controlled or prevented by the provider of medical services. The amendment also introduced a sentence specifying that the criteria of ‘unavoidable damage’ are to be defined by the Government (art 2 (9)1 of the amended Law).Secondly, the amendment to the Law now clearly provides that the right to claim compensation of damage is also held by the parents of the patient and the adult children regardless of their working capacity. The initial provision was based on the text of art 6.284 Civil Code (CC),3 and the drafters did not take into consideration the jurisprudence of courts on the point that the right to nonpecuniary damages may also be awarded to others who have maintained a proximate relationship with the direct victim. The Patients’ Rights Commission was accordingly given powers to decide on the proximity of the connection and award compensation for non-pecuniary damage (art 13). Even after the amendment, this definition remains incomplete, as it does not cover other possible proximate acquaintances who might be awarded non-pecuniary damages, therefore it is likely that the Law will need to be amended again. Thirdly, the Law initially provided that damage is not compensated in any event if the Commission establishes that it occurred as a result of intentional conduct of the patient or because of his/her gross negligence. The initiators of the amendment considered that this was less advantageous to patients and other seekers of compensation of medical damage than the standard provided by art 6.282 CC.4 Accordingly, the provision was amended to the effect that the patient’s intentional conduct or his/her gross negligence may serve as a ground to reduce compensation or dismiss the claim entirely.Fourthly, Seimas was persuaded to include a specification that the Commission may only award lump sum payments. Its purpose was to preclude an ‘unjustified’ expectation of the patients to be able to claim an additional payment from the Commission in the case of deterioration of their health on the ground of art 6.283 CC.5 Finally, the Law specifies that the decision of the Commission on the inadmissibility of the request may be reviewed by the administrative courts (art 24(4)1)), whereas appeals against the decisions of the Commision are to be decided by the courts of general competence (art 25).