Compensation for Non-Pecuniary Loss in Connection with the Disclosure of Medical Confidentiality

The aim of this paper is to analyze possible legal grounds for compensation of non-pecuniary loss in the case of violation of the patient’s right to medical confidentiality, expressed in the provisions of Article 13-14 of the Act on Patient’s Rights and the Patient Ombudsman of 6 November 2008 and confirmed from the perspective of the doctor’s duty in Article 40 of the Act on Professions of Physician and Dentist of 5 December 1996. In the opinion of the author, these may be general provisions relating to compensation for the harm suffered in connection with the infringement of personal goods, i.e. Article 448 of the Civil Code in connection with Article 415 and Article 416 of the Civil Code (tort regime). This legal basis is related to the requirement of proving that the violation of the right to medical confidentiality is detrimental to the sphere of personal rights in a particular case. Another basis is the provisions of Article 4 paragraph 1 of the Act on Patient Rights and the Patient Ombudsman. Citing this legal basis is - in turn - connected with the requirement to prove a culpable infringement of a patient’s rights, which may also take place when data contained in medical records are disclosed. Apart from that, it is also possible to have an alternative concurrence of claims in the case of infringement of yet another personal good (health) in connection with the occurrence of a health disorder caused by the disclosure of medical confidentiality (Article 445 of the Civil Code).