Richie Kock Attorneys
Record amount for immaterial damages granted in Aruban medical malpractice case
Case AR 233/2015
On November 23rd of 2016, the Court in First Instance of Aruba granted a record amount for immaterial damages in excess of AWG 80,000 ($45,000), including legal interest, in a medical malpractice case regarding the removal of the plaintiff’s breast without medical necessity. The defendants were the medical professional, Dr. Horacio Oduber Hospital and Country Aruba.
The Court concluded that the unnecessary removal of plaintiff’s breast constituted a serious transgression on her physical integrity. For that reason, a substantial compensation was justified.
Other damages: material damages and bereavement damages
In addition to immaterial damages, i.e. for emotional suffering, the plaintiff may also claim compensation for incurred material damages.
Among others, material damages may result from a decreased ability or complete inability to perform work or produce income. For instance, in case the medical error physically disabled the patient or even resulted in his death. In the latter case, the relatives of the deceased patient may claim material damages on the basis of article 6:108 Civil Code (loss of income).
If the Court accepts the claim, the defendant(s) would be ordered to compensate the plaintiff for said material damages as well.
Conversely, only the patient may claim financial compensation for incurred emotional suffering. The patient’s relatives cannot claim so-called ‘bereavement damage’ or ‘affectionate damage’ (affectieschade) for their emotional suffering resulting from the disabled state or even death of the patient following to the medical err. At least not yet.
Last year, a bill for the introduction of financial compensation for bereavement damages (wetsvoorstel schadevergoeding zorg- en affectieschade) was sent to the Dutch Parliament. The hearing was scheduled to take place last October. A previous attempt to introduce the bereavement damage in 2003, failed when it was rejected by the Dutch Senate in 2010.
The introduction of bereavement damages in the Netherlands may result in the applicability thereof in the Dutch Caribbean, including Aruba. The legislative basis (article 39 of the Charter for the Kingdom of the Netherlands) as well as the judicial basis (as applied by the Dutch Supreme Court) of the ‘principle of concordance’ (concordantiebeginsel) would make this possible.
Number of complaints filed in Aruba
According to the 2014 annual account of the HOH, a total of 154 complaints were filed by patients in 2014. In 2013, a total of 193 complaints were registered. The complaints range from financial complaints to complaints regarding medical treatment. The report does not specify which or how many complaints are based on medical malpractice.