Our Practice Areas
Medical Malpractice and Healthcare Liability
Introduction: Navigating Medical Treatment Errors with Confidence
Thailand is globally recognized for its advanced medical facilities and highly skilled healthcare professionals, attracting a significant number of international patients for both essential and elective procedures. When you place your health and trust in the hands of a medical provider, you expect a high standard of care. Unfortunately, there are instances where this standard is not met, leading to injury, illness, or profound loss. Such events, known as medical malpractice or medical negligence, can be physically and emotionally devastating.
At JIRAWAT & ASSOCIATES, we understand the distress and confusion that follow a negative medical outcome. Our dedicated team of legal experts provides compassionate and authoritative guidance to both Thai nationals and foreign citizens who have suffered harm due to medical errors. We are committed to helping you navigate the complexities of the Thai legal system, understand your rights, and pursue the justice and compensation you deserve, all while adhering to the highest standards of professional conduct.
Understanding Medical Malpractice in the Thai Legal Context
Defining the Standard of Care in Thailand
The foundation of any medical malpractice claim rests on the “standard of care.” This is not a standard of perfection but rather the level of competence and skill that a reasonably prudent medical professional, with similar training and experience, would exercise in the same or similar circumstances.
In Thailand, this standard is shaped by both professional regulations and legal precedent. The Medical Profession Act B.E. 2525 (1982) defines the scope of medical practice and establishes the Medical Council of Thailand (แพทยสภา) as the primary regulatory body. The Council is tasked with upholding professional ethics, issuing licenses, and ensuring practitioners adhere to established standards. The Medical Council’s Regulations on Ethics further mandate that physicians must maintain the “highest possible standard” of practice in any given situation and always act in the patient’s best interest.
It is crucial to recognize that Thailand has a dual system of accountability. A patient can file a complaint with the Medical Council for an ethical review, and separately, file a lawsuit in court for legal liability. These processes are independent. A decision by the Medical Council that a doctor’s conduct did not breach professional ethics is not binding on a court of law. As established in a landmark Supreme Court case involving Patrangsit Hospital, the judiciary retains the ultimate authority to determine legal negligence based on the evidence presented in court, irrespective of the Council’s findings. This separation ensures that patients have a robust and impartial avenue for legal recourse.
In Thai civil law, a medical malpractice claim is fundamentally a type of “wrongful act,” or ละเมิด in Thai. To successfully prove a claim, Section 420 of the Civil and Commercial Code (CCC) requires the claimant (the patient) to establish four essential elements :
- A Willful or Negligent Act: The healthcare provider must have acted either intentionally to cause harm (which is rare) or, more commonly, negligently. Negligence is the failure to exercise the degree of care that a reasonable medical professional would have exercised under similar circumstances.
- Unlawfulness: The act or omission must have breached a legal duty owed to the patient. In the medical context, this is the inherent duty of care that a doctor, nurse, or hospital owes to every patient they treat.
- Causation of Damage: The patient must have suffered actual, demonstrable harm. This can be physical injury, a worsened medical condition, psychological trauma, or financial loss.
Causation Link: There must be a direct causal link between the provider’s negligent act and the patient’s injury. The harm suffered must be a foreseeable consequence of the provider’s failure to meet the standard of care.
What Constitutes a "Wrongful Act" (ละเมิด) in Medical Practice?
Common Examples of Medical Negligence
Medical negligence can manifest in various forms. Our firm has experience handling a wide range of cases, including but not limited to:
- Misdiagnosis or Delayed Diagnosis: Failure to correctly identify a condition like cancer or diabetes in a timely manner, leading to a worse prognosis.
- Surgical Errors: Mistakes made during an operation, such as operating on the wrong body part, leaving a foreign object inside the patient, or causing nerve damage. This is particularly relevant in cosmetic and plastic surgery cases.
- Anesthesia Errors: Administering an incorrect dosage, failing to monitor the patient’s vital signs properly, or using defective equipment, which can lead to brain damage or death.
- Medication Errors: Prescribing or administering the wrong drug or an incorrect dosage.
- Birth Injuries: Negligence during labor and delivery that results in harm to the mother or child.
- Failure to Obtain Informed Consent: Proceeding with a treatment or procedure without fully informing the patient of the potential risks, benefits, and alternative options, thereby depriving them of their right to make an informed decision about their own body.
The Legal Foundation for Your Claim
The Thai legal system offers several distinct pathways to hold negligent medical providers accountable. The choice of which path to pursue is a critical strategic decision that can significantly impact the outcome of a case, particularly concerning deadlines and potential remedies.
Civil Liability: Seeking Compensation for Damages
The most common legal route is a civil lawsuit seeking monetary compensation for the harm suffered. This claim is based on the principle of a “wrongful act” under CCC Section 420. A crucial component of civil liability is the concept of vicarious liability, established in CCC Section 425. This section states that an employer is jointly liable for the wrongful acts committed by an employee “in the course of employment” (ในทางการที่จ้าง). For patients, this means they can sue not only the individual doctor or nurse but also the hospital or clinic that employs them, which often has greater financial resources to provide fair compensation.
Criminal Liability: When Negligence Becomes a Crime
In cases of gross negligence, a provider’s actions may constitute a criminal offense under the Thai Penal Code. This provides a powerful source of leverage for victims and their families. The relevant statutes include:
- Section 300: Causing grievous bodily harm through a negligent act, punishable by imprisonment of up to three years and/or a fine.
- Section 291: Causing death through a negligent act, punishable by imprisonment of up to ten years and a fine.
A criminal conviction does not preclude a separate civil claim for compensation; often, the two are pursued in parallel.
The Consumer Protection Framework
An often-overlooked but strategically advantageous avenue is to frame the claim under the Consumer Case Procedure Act B.E. 2551 (2008). Thai courts have recognized that medical treatment constitutes a “service,” and the patient is a “consumer.” Filing a claim in the specialized Consumer Court can offer several benefits, including expedited proceedings and, most importantly, a more favorable statute of limitations, which can be critical if other deadlines have passed.
Liability of Public vs. Private Hospitals
The legal procedure differs depending on whether the negligence occurred in a private or a state-run (public) hospital. While claims against private hospitals proceed under the Civil and Commercial Code, claims against public facilities are governed by the Tortious Liability of Officials Act B.E. 2539 (1996). A key provision, Section 5 of this Act, dictates that the injured party must sue the relevant government agency (e.g., the Ministry of Public Health) directly. It is legally impermissible to sue the individual government doctor or nurse for actions performed in the course of their official duties. This is a critical procedural distinction that requires expert legal guidance to avoid having a case dismissed.
The Legal Process: Step-by-Step Guidance for Patients
Step 1: Immediate Actions and Evidence Gathering
If you suspect you have been a victim of medical malpractice, the actions you take immediately following the incident are crucial. We advise our clients to:
- Request All Medical Records: Obtain a complete copy of your medical file from the hospital or clinic, including doctor’s notes, lab results, and imaging scans.
- Seek a Second Medical Opinion: Consult with an independent, trusted physician to assess your condition and provide an expert opinion on whether the initial treatment fell below the accepted standard of care.
- Document Everything: Keep a detailed journal of your symptoms, conversations with medical staff, and all related expenses. Preserve all receipts and correspondence.
- Do Not Sign Waivers: Refrain from signing any documents, settlement offers, or waivers from the hospital, its representatives, or its insurance company until you have consulted with an experienced lawyer.
Step 2: Pre-Litigation Pathways
Before initiating a formal lawsuit, there are alternative dispute resolution options that can lead to a faster and less costly resolution. These include:
- Filing a Complaint with the Medical Council: You can submit a formal complaint against the physician to the Medical Council of Thailand. The Council will investigate the matter from a professional ethics standpoint. While its decision is not binding on a court, a favorable finding can strengthen your legal case.
- Mediation and Negotiation: Many hospitals have internal procedures for mediation. Engaging in direct, lawyer-assisted negotiation with the hospital can often lead to a fair settlement without the need for litigation.
Step 3: Filing a Lawsuit
If pre-litigation efforts are unsuccessful, the next step is to file a formal lawsuit in the appropriate court (Civil, Criminal, or Consumer), depending on the legal strategy determined by your lawyer. This initiates the formal legal process of discovery, witness testimony, and eventual trial.
Critical Deadlines: Understanding the Statute of Limitations
Legal Basis | Statute of Limitations | Triggering Event | Governing Law |
|---|---|---|---|
Wrongful Act (Tort) | 1 year | From the date the injury and the liable person become known (but not exceeding 10 years from the date of the act) | Civil and Commercial Code, Sec. 448 31 |
Consumer Protection | 3 years | From the date the injury and the liable person become known | Consumer Case Procedure Act, Sec. 13 (per Dika 2764/2565) 22 |
Criminal Negligence | Varies (e.g., 10 years for grievous bodily harm) | From the date of the offense | Penal Code, Sec. 300 & CCC, Sec. 448, Para. 2 18 |
This table illustrates the strategic importance of legal counsel. A claim that appears to be expired under the one-year tort law may still be viable if framed as a consumer protection case. An expert lawyer can analyze the specifics of your situation to determine the most advantageous legal avenue and ensure all critical deadlines are met.
Landmark Cases: How Thai Courts Have Ruled on Medical Malpractice
The Precedent for Cosmetic Surgery: Supreme Court Dika No. 292/2542
This seminal case involved a patient who suffered complications from a breast reduction surgery. The Supreme Court’s ruling established several vital principles that are particularly relevant to the field of cosmetic surgery :
- Higher Standard for Specialists: The court held that medical specialists, such as cosmetic surgeons, are expected to adhere to a higher standard of care and diligence than general practitioners.
- Duty of Information: A physician has a duty to fully inform the patient about the procedure, recovery process, and potential risks. A failure to provide adequate information can itself constitute negligence.
- Compensation for Psychological Harm: The court recognized that the patient’s resulting psychological distress and anxiety were a direct consequence of the negligent surgery and awarded compensation for this non-physical harm.
Holding Hospitals Accountable: The Patrangsit Hospital Ruling (2022)
In a recent and widely reported case, the Supreme Court overturned the decisions of two lower courts and found Patrangsit Hospital and one of its doctors liable for negligence that led to a patient’s death. The court ordered them to pay substantial compensation to the victim’s family. The most significant legal principle from this case is the court’s explicit declaration that an opinion from the Medical Council clearing a doctor of wrongdoing is not binding on the court’s own independent assessment of the facts and evidence. This ruling powerfully affirms the judiciary’s role as the ultimate arbiter in malpractice disputes.
Recent Developments in Damage Awards: Dika No. 4140/2566
This 2023 decision signals a potential shift in how damages are awarded. In this case, the Supreme Court not only awarded standard compensation but also ordered the defendant to pay an additional 300,000 THB in punitive damages. This indicates an increasing willingness by the courts to punish particularly egregious or reckless conduct, going beyond merely compensating the victim for their losses.
Compensation and Damages: What You Can Claim
If your medical malpractice claim is successful, the court can award compensation (ค่าสินไหมทดแทน) to cover the losses you have incurred. Under CCC Section 438, the court determines the amount based on the specific circumstances and the severity of the harm. Claims can typically be made for:
- Economic Damages: These are quantifiable financial losses, including:
- Past and future medical expenses for corrective treatment and rehabilitation.
- Lost income and diminished future earning capacity.
- Funeral expenses (ค่าปลงศพ) in the event of death.
- Costs of care and other necessary out-of-pocket expenses.
- Non-Economic Damages: This compensation is for intangible harm, such as:
- Pain and suffering (physical and emotional).
- Permanent disfigurement or disability.
- Psychological trauma, such as anxiety or depression, resulting from the injury.
Other Damages: In cases of wrongful death, dependents (such as a spouse or children) can claim for loss of support (ค่าขาดไร้อุปการะ).
A Balanced View: Responsibilities of Healthcare Providers
JIRAWAT & ASSOCIATES believes in a fair and balanced approach. We recognize that medical professionals operate under immense pressure and that not every adverse outcome is the result of negligence. Healthcare providers have clear responsibilities under the law and professional ethical codes.
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