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Belgium: New Law on Compensation of Victims of No-Fault Medical Accidents

(May 4, 2010) Belgium's Law of March 31, 2010, on the Compensation for Damages Resulting from Medical Care, was published in the Moniteur Belge, Belgium's official gazette, on April 2, 2010. (Loi du 31 mars 2010 relative à l'indemnisation des dommages résultant de soins de santé, MONITEUR BELGE, Service Public Fédéral Justice website, available at [click on chosen language; enter date of official gazette on «Autre Sommaire» at the bottom of the page].)

The Law aims at compensating victims of no-fault medical accidents by creating a Medical Accident Compensation Fund (Fonds des accidents médicaux). The missions of the Fund are as follows:

● to determine whether the damage incurred by the patient resulted from the caregiver's fault and to evaluate the extent of the damage;

● to verify whether the caregiver is sufficiently insured;

● to compensate the victim if the caregiver was not at fault and the conditions for compensation set forth by the Law are met;

● to ask the insurance company to present an offer to the victim where the caregiver is at fault;

● to organize a mediation at the request of the patient, his/her beneficiaries, the caregiver, or the insurance company. The Fund may eventually be a party to the mediation; and

● to give an opinion as to whether the compensation amount proposed by the insurance company is sufficient where requested by the patient or his/her beneficiaries. (Id. art 8.)

The Law defines a no-fault medical accident as “an accident linked to medical care that does not trigger the caregiver's liability, does not result from the patient's health condition, and gives rise to abnormal damage.” (Id. art. at 2.7.) Damage is deemed abnormal if it should not have occurred due to the present state of science, the patient's health condition, and the objective and foreseeable evolution of his/her condition. (Id.)

Finally, the Law provides that the Fund will compensate a medical accident victim in the following cases:

● if the damage suffered by the victim is the result of a no-fault error and is grave (id. at art. 4). Damage is deemed grave if the patient has a permanent invalidity rate equal to or higher than 25%, a six-month temporary invalidity, suffered particularly serious perturbations (including economic) in his life conditions, or is deceased (id. at art. 5);

● if the damage is caused by the fault of a caregiver who is not sufficiently insured (id. at art. 4);

● if the damage is caused by the fault of the caregiver, but such liability is challenged by the insurance or the caregiver. The damage must be grave, as defined above (id.); or

● if the insurance company of the caregiver is offering compensation that the Fund finds to be insufficient (id.).