Jurisdiction for the resolution of malpractice disputes lies with the Tribunal – what are the consequences?

On 6 November 2022, Law no. 292/2022 on health care reform entered into force. This Law amends Law no. 95/2006 in order to unify the case law on the resolution of malpractice disputes, the jurisdiction over actions against the decision of the Commission for Monitoring and Professional Competence in Malpractice Cases being vested in the Tribunal, and not the court of first instance, as before.

The new provisions of the Health Law stipulate the following:

• jurisdiction over actions brought to challenge the decision of the Commission for Monitoring and Professional Competence in Malpractice Cases (the “Commission”) shall be vested in the tribunal – civil division in whose territorial district the act of malpractice complained of took place;
• the remedy against the judgment ruled in the court of first instance by which the action provided by item (i) has been solved is the appeal;
• jurisdiction in disputes relating to the provisions of the Health Law – an action for liability in case of malpractice brought directly before the court shall lie with the tribunal – civil division in whose territorial jurisdiction the malpractice complained of occurred.

Consequences of the legislative changes concerning the jurisdiction of the courts in malpractice actions

Until the entry into force of Law no. 292/2022, the procedural rules for malpractice actions were as follows:

• The appeal procedure before the Commission was optional. Thus, the injured person had the option either:
• to follow the appeal procedure before the Commission; or
• to bring an action under the Health Law rules and the common law rules directly before the courts.
• By Decision no. 5/2022 on the examination of the appeal in the interest of the law on the “interpretation and application of the provisions of Articles 684 and 687 of Law no. 95/2006 on Health Reform and Article 94, item 1, letter k and Article 95, item 1 of the Code of Civil Procedure (“Decision no. 5/2022”), published in the Official Gazette on 23 May 2022, the High Court of Cassation and Justice established that both the action challenging the Commission’s decision and the action brought directly before the courts will fall within the jurisdiction of the court of first instance.

After the entry into force of the provisions of Law no. 292/2022:

• The procedure of appeal before the Commission remains optional, the injured party having both the possibility to opt for the procedure before the Commission and to bring the claims directly before the competent court, under the provisions of the Health Law and the common law provisions;
• Jurisdiction for both types of action lies with the tribunal – civil division in whose district the malpractice complained of occurred. Decision no. 5/2022 is still valid, since the difference between the new rules and the old provisions concerns the material jurisdiction of the court.

Considerations on the change of the legislative rules 

The change in the jurisdiction of the court in malpractice actions from court to tribunal is desirable for several reasons:

• Assigning jurisdiction to the tribunal is desirable given the complexity of these types of disputes.
• Under the common law provisions, the court with full jurisdiction is the tribunal. The derogation from the common law provisions for establishing jurisdiction (establishing jurisdiction in favor of the court) is justified by the specificity of the subject matter of the dispute – in other words, disputes which are not particularly complex are assigned to the courts lower down the scale. However, malpractice actions, as a rule, involve a high degree of complexity.
• The procedure before the Commission is not an administrative-jurisdictional procedure but is simply an activity of control and professional expertise. Consequently, both the attribution of functional jurisdiction to the civil division of the tribunal and the express indication of appeal as a remedy are welcome, in order to clarify and avoid the situation where the plaintiff bases his/her action on the common law in the matter of administrative contentious.