The Verkhovna Rada is proposing changes to the rules for considering legal disputes between patients and medical institutions. In particular, it would place the burden on doctors and clinics to prove that no violations occurred during treatment and would clarify the rules for compensation for moral damages. The relevant changes are provided for in Draft Law No. 16110, "On Compensation for Moral Damages for a Medical Error in Determining a Reasonable Amount of Compensation," registered by Member of Parliament Valerii Hnatenko. However, the Verkhovna Rada of Ukraine Committee on National Health, Medical Assistance and Medical Insurance has expressed mixed views on the proposed changes. Read more in the UNN article.
Currently, Article 80 of the Fundamentals of Ukrainian Legislation on Health Care contains only a general provision on civil, administrative and criminal liability for violations of legislation in the field of health care. The author of Draft Law No. 16110 proposes supplementing it with provisions specifying the liability of medical institutions to patients. In particular, this concerns cases in which a person seeks compensation for harm caused by the improper provision of medical assistance.
The draft law has already sparked debate in legal circles. Lawyers point out that some of the document’s formulations allow for ambiguous interpretation: the draft does not distinguish between cases in which the burden of proof rests with the medical institution and those in which it rests directly with the doctor. In addition, the proposed criteria for determining moral damages do not mention the degree of fault, while the provisions on the burden of proof may be interpreted too broadly.
What the Verkhovna Rada’s specialized committee thinks about the draft law
Member of the Parliament of Ukraine and member of the Verkhovna Rada Committee on National Health, Medical Assistance and Medical Insurance Oksana Dmytriieva expressed doubts, in a comment to UNN , about the appropriateness of introducing separate rules for compensation for moral damages specifically in the medical field.
I understand the desire to strengthen the protection of patients, but I am not convinced that this requires establishing separate rules for compensation for moral damages specifically in the field of health care. The right to such compensation is already provided for by the Civil Code, as is an employer’s liability for harm caused by an employee while performing their duties. That is, this draft law essentially duplicates provisions of the Civil Code that are currently in force. I do not dispute a patient’s right to compensation for moral damages. But I believe that the general rules should apply to everyone
At the same time, she supports the principle that a patient should not need to possess specialized medical knowledge in order to protect their rights in court. This is the basis for the change to the rules of evidence proposed by the draft law. However, as Dmytriieva emphasized, this approach has already been formulated by the Supreme Court. In particular, in its ruling of November 30, 2022, in case No. 344/3764/21, the court held that it is sufficient for a patient to point to a possible violation, after which the burden of proof falls on the medical institution or doctor.
In the lawmaker’s view, enshrining this principle in legislation requires additional justification, since the need for specialized professional knowledge arises in far more than just medical disputes.
Specialized knowledge is needed in many fields, not only in medicine. A car-service customer is not required to know how to repair a vehicle, while improperly repaired brakes can pose a threat to life. The same applies to all industries – each has its own narrow area of expertise that a person seeking compensation for moral damages cannot be expected to know because they are not a specialist in that field. Therefore, the complexity of the service itself or the seriousness of the possible consequences should not automatically create a separate liability regime for one particular professional field
Another comment by the lawmaker concerns the term "medical error," which is used in the bill's title but is not defined in its text. In Dmytriieva's view, such wording may create the impression that the fact of a violation and the doctor's guilt have already been established, although in reality this should be determined by a court.
The MP emphasized that if patients encounter difficulties in practice obtaining medical records or having examinations conducted, legislative changes should primarily eliminate precisely these obstacles.
The Odrex case: when the fight for justice lasts for years
The problems highlighted by the lawmaker are confirmed by high-profile cases involving the circumstances of treatment and deaths of patients at the Odrex clinic in Odesa. The families of the deceased have been trying for years to obtain justice, facing delays in court proceedings, difficulties in obtaining medical records and having examinations conducted.
For almost a year, a high-profile criminal case concerning medical negligence by Odrex doctors Vitalii Rusakov and Maryna Bielotserkovska has been heard in court. According to the investigation, their actions or inaction may have led to the death of Odesa businessman Adnan Kivan. The trial has been accompanied by regular adjournments, including because of the absences and motions of the defendants' lawyers.
In September alone, seven of the 13 scheduled hearings were adjourned or did not take place. Because Rusakov's defense lawyers repeatedly failed to appear, Judge Viktor Chaplytskyi found the reasons for their absence unjustified and appealed to the Qualification and Disciplinary Commission of the Bar.
Svitlana Huk faced difficulties of a different nature; her husband died after surgery at Odrex in 2019. The family paid $42,500 for the treatment, but after the patient's death, the clinic sought an additional approximately UAH 900,000 through the courts. Huk also filed a lawsuit against the clinic seeking compensation for material and moral damages. Criminal proceedings are ongoing in parallel, but over seven years the woman has still been unable to secure a full forensic medical examination. Expert institutions repeatedly refused to conduct the examination, in particular because of problems with Odrex's medical records.
Olha Melai, whose husband died after a port was installed at Odrex, is also trying to establish the circumstances of his treatment, for which the family paid more than UAH 2.5 million. The widow initiated an investigation into whether Odrex's medical records had been falsified. However, the Health Department of the Odesa Regional Military Administration refused to conduct a clinical expert assessment because Odrex did not provide the documents, citing their seizure by law enforcement.
Another victim, Khrystyna Totkailo, is seeking an investigation into the circumstances of her father's death; he had also been treated at Odrex. According to the woman, after chemotherapy and the placement of a gastrostomy tube, her husband's condition sharply deteriorated, and he subsequently died. As part of the criminal proceedings, the investigator was replaced, and the medical documents were sent for examination. However, the family has still not received definitive answers about the circumstances of the treatment.
The families of the deceased patients told UNN more about these stories in an article marking the anniversary of the release of the documentary film "Wasp’s Nest".